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Immigration Issues/H1-B Wage Level and RFE

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Question
Hello,

I have been working under H1-B with my current employer since 2003 and my job description has not changed in any substantial way. The prevailing wage level in the LCA for the four subsequent H1-B extensions since 2003 was always selected as Level I. My actual(offered) wage was always more than the Level I prevailing wage and same as my non-H1-B colleagues.

The prevailing wage for the same position for PERM in 2009 came to be at Level II. My actual(offered) wage in 2009 for H1-B was more than the PERM prevailing wage. Since then, we have had pay freezes and my salary has not changed. For the 2010-2011 years, my actual(offered)wage is exactly in the middle of Level I and Level II in the OES wage survey. There is no way my employer can increase my salary.

If my employer files the LCA to extend my current H1-B by using a wage level I, what kind of RFE can my employer expect from DOL and USCIS?

Thank you!

Answer
Hi,

H1B reflects your current job, and PERM is permanent, full-time employment in the future. You are maintaining H1B status by being employed as per H1B petition filed by your employer.

The employer has the intention to pay the salary stated in PERM in the future (when you receive your green card) and it is OK if you are being paid a lesser amount at this time.

There will be no RFE based on prevailing wage or actual wage discrepancies in H1B versus PERM.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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