Immigration Issues/PayCheck/W-2/LCA

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Question
QUESTION: Hello,

Thank you for your time!

I am currently on my 10th year of H1-B.

My monthly wage on my pay stub is $600 more than the offered wage on my LCA.

My W-2 for 2012 is about $1000 less than the offered wage on LCA/paystub. My employer told me this was because of the Health Insurance Deduction and Retirement Deduction which increased substantially in second half of 2012.

Questions:
a) Have I been out-of-status since Jan 2012?

b) I have EAD. Will switching to EAD help me with the above issue?

Thank you!

ANSWER: Hi,

You can always be paid more than indicated in the LCA/I-129 , but should not be paid less.

As your monthly wage is more than indicated on the LCA, there is no violation. Sometimes the W2 wage is less than it should be (as compared to pay stub) for technical reasons such as not being employed fully throughout the year due to, for example, time spent outside the U.S., or perhaps the H1B status did not take effect on Jan. 01, 2012 and therefore the W2 does not reflect the actual salary paid to you for the entire year, or sometimes it can be for more obscure reasons as stated by your employer and it is OK, there should be no negative impact on your H1B status.

EAD is a good backup, but you should continue to extend H1B status before it expires as there are benefits to maintaining H1B status, e.g., if I-485 is denied for some reason, you will not be required to depart the U.S. immediately if maintaining H1B status.

---------- FOLLOW-UP ----------

QUESTION: Hello,

Thank you for your answer!

If the the gross salary on the pay stub exceeds the W-2 by less than $1000,
will that result in a RFE for I-485? If yes, will a letter from the Director of Finance explaining the health and retirement deductions suffice?

Thank you!

Answer
Hi,

An RFE for I-485 has never been issued based on minor discrepancy between paystub and W2. The USCIS requests recent paystubs/W2 to see if you were being paid close to the salary indicated on the H1B petition and thus maintaining valid nonimmigrant visa status in order to be eligible for I-485 filing.

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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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