URGENT - New Employer does not want to maintain my LCA Wage.

[swak]

Briefly about my case and then the questions;

I have been with Company A since 2005 and they filed for my LC in April 2006 which was approved. Then they filed for my I-140 in August 2006, which was also approved.
Then I applied for my I-485 in July 2007, and have since got me AP and EAD.
I am now planning to change my employer based on AC21, since I have an approved I-140 and over 180 days have already been passed.

Company B has offered me employment on full time position based on my EAD. But now they have come back with a concern;

In my LCA, my Wage was specified as being $48/Hr (over 90K), but I never received that kind of money from Company A, all I got was $25/hr.

Now Company B is offering me $33/Hr (65K), which is good for me compared to the $25/Hr I am getting (from Company A).

So Company B is saying that they can not go ahead with my employment me as they can not offer me $48/Hr which they will have to maintain if my AC21 has to be valid. They have asked me to continue with Company A till I get my GC and then only will they take me.

So my questions are:

1. If the wage mentioned in my LC was $48/Hr, then how come Company A has managed (legally) to pay me only $25/Hr all this time? In fact even in my W2's from Company A only $25 is mentioned.

2. If Company A has been paying me $25, then can't a new employer (Company B) pay me $33 and employ me? Since it's more than what I have been getting.

3. What options do I have if I really want to change my employer using the AC21?

and finally...

4. Will there be any inquiries or problems in getting my GC approved considering this wage difference that Company A is offering me? $25 instead of $48.

Thank you all, any help would be appreciated.
J.

 

[medavid]

From what I have read, company A has to pay you whatever they said they would pay to ($48) not $25. Go ahead and listen to the recorded conference call available in this site. I heard about a similar situation, and I think you would have to report your company to the department of labor or something like that, and they would have to pay you all the salary that they haven't payed you. I think that's what I heard, but go ahead and listen to the calls, and I'll let the experts jump in.

 

[worrieddude]

You may want to be careful here.

Employers get away with the fact that the GC is for future employment and wages will be paid as per LCA on getting the GC.

I wonder how you I-140 got approved without any Ability to Pay issues (because you are not being wages as per the LCA).
Post more details of your case here.

 

[swak]

Re:

You may want to be careful here.

Employers get away with the fact that the GC is for future employment and wages will be paid as per LCA on getting the GC.

I wonder how you I-140 got approved without any Ability to Pay issues (because you are not being wages as per the LCA).
Post more details of your case here.

So does this mean that the Employers can pay ANY wage till the GC is approved (if they say the GC is for future employment)?

I think my Company handled the I-140 approval somehow even though there were the Pay issues.

So any suggestions on how do I go about my AC21 now?

 

[diOxide]

LCA and Labor Certification are different. LCA is labor condition app which is used for H1.
Wage mentioned in LCA should be paid if you are working on H1.
But is frequently violated.
Wage mentioned in Labor Cert LC is to be paid at GC arrival.
If you are making more or equal to what is mentioned on Labor Cert for GC and satisfy other conditions for AC21 you may want to move on and work on EAD. Making less may be an issue. If you are working on H1 for "A" then "A" is breaking the law by paying you less wage than mentioned in LCA; but you will not report for fear of losing GC.

 

[FunLover2000]

swak,

Your employer should pay you the stipulated wage as in the LCA of your H1. If he is not paying, you can complain and get back-wages (From the day you started working for that company) and this doesn't affect your GC as your I-140 approved and your I-485 is pending for more than 180 days.

However, first thing that you should do is get another employment. The AC-21 stipulates that you should be working for the same/similar job. Your job duties shouldn't change. However the pay can be more or less (not too much like 75% diff) depending upon varios factors...geographical location, health benefits, bonuses, 401K matches, ESOPs and ESPPs...my point is base salary itself not necessarily be compared to prove that you are working for same or similar job.

Once you obtain the job, go after Company A and collect all your back-wages. Even if, Company A revokes your I-140, your GC will still in progress as you completed 180 days in I-485. You must be in same or similar job at the time of approval of your GC.

Please be aware that Company A is obligated to pay you $48 only after you obtain your GC as thats the agreement both of you are entered into while filing I-140. But he should pay your H1B wage as in the LCA of H1B.

 

[swak]

Re:

LCA and Labor Certification are different. LCA is labor condition app which is used for H1.
Wage mentioned in LCA should be paid if you are working on H1.
But is frequently violated.
Wage mentioned in Labor Cert LC is to be paid at GC arrival.
If you are making more or equal to what is mentioned on Labor Cert for GC and satisfy other conditions for AC21 you may want to move on and work on EAD. Making less may be an issue. If you are working on H1 for "A" then "A" is breaking the law by paying you less wage than mentioned in LCA; but you will not report for fear of losing GC.

Thank you so much for your advice. I really appreciate it.

 

[swak]

,

Your employer should pay you the stipulated wage as in the LCA of your H1. If he is not paying, you can complain and get back-wages (From the day you started working for that company) and this doesn't affect your GC as your I-140 approved and your I-485 is pending for more than 180 days.

However, first thing that you should do is get another employment. The AC-21 stipulates that you should be working for the same/similar job. Your job duties shouldn't change. However the pay can be more or less (not too much like 75% diff) depending upon varios factors...geographical location, health benefits, bonuses, 401K matches, ESOPs and ESPPs...my point is base salary itself not necessarily be compared to prove that you are working for same or similar job.

Once you obtain the job, go after Company A and collect all your back-wages. Even if, Company A revokes your I-140, your GC will still in progress as you completed 180 days in I-485. You must be in same or similar job at the time of approval of your GC.

Please be aware that Company A is obligated to pay you $48 only after you obtain your GC as thats the agreement both of you are entered into while filing I-140. But he should pay your H1B wage as in the LCA of H1B.

Wow, you really took the time to write me such an informative reply. Now I have a better understanding of what has to be done and how. Thank you again.

 

[nj_skm]

Wow, you really took the time to write me such an informative reply. Now I have a better understanding of what has to be done and how. Thank you again.

I hope you will follow up and sue your ex employer. Complain to the DoL and the USCIS. Way too many employers are getting away with not paying wages because the victims are unreasonably scared and do not complain to the authorities.

 

[swak]

I hope you will follow up and sue your ex employer. Complain to the DoL and the USCIS. Way too many employers are getting away with not paying wages because the victims are unreasonably scared and do not complain to the authorities.

I definitely will do it, just waiting for my GC. Then I'll post everything here, every step of the Sue'ing procedure. So the rest of you also can go ahead and do it.

 

[Jackolantern]

Why bother to wait until GC approval? Company B is not obligated to pay your LC wage or LCA wage. They just have to ensure it isn't massively less or more to the extent that it looks like it is not a "same or similar" job (e.g. $12/hour or $150/hour will look suspicious). Once you're at company B, hurry up and sue A. The longer you wait the harder it is to win.