1. A question on prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined.
A reader asks,
My prevailing salary level (PWD) is approved, but the company’s pay center has changed location. After waiting for 6 months, I finally got the PWD. I received an email from a lawyer today, saying that I can start advertising, and asked me to send him some information, including the latest pay slip. I sent it. I thought everything was just waiting, but after a few hours, a lawyer said that the entity name of my pay slip had changed, and I had to wait another 8 months for a new file. what do I do? I explained the reason, saying that it is not because the entity name has changed, but because the location of the pay center has changed, from the original IL to CA. This requires refile, but how do I know? I never paid attention to this, because the company has never changed or reorganized. However, I went to see the pay slip today, and it did change many times in the middle, as if it changed every few months. HR said this is normal. I would like to ask, I am now asking HR to change my pay center back to IL, and it has been kept in IL. Is it possible to continue to use the current PWD?I have been working remotely for more than a year since I was hired, because when I applied for PWD before, I asked whether to apply according to my home location, and the lawyer said no, I need to do it according to the company headquarters office. The entity name company at that time happened to belong to IL, so they used IL. I didn’t know the pay slip keeps changing. I asked HR, and he said that the Pay center is determined according to the company code of each month or each period. I’m remote, it doesn’t affect me. I still file taxes according to my current state. HR said that I can apply for my manager to help me fix it on the pay center of IL. The lawyer didn’t respond either. what to do?
Mr. Lee answers,
A prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined should generally be the prevailing wage of the headquarters metropolitan statistical area. It is not clear from your fact situation whether the name on the prevailing wage form is that of the headquarters office in Illinois or a separate entity in Illinois. If a separate entity like a professional employer organization (PEO), it may well be that the prevailing wage will have to be redone unless everyone agrees that that will be the sponsoring entity and all documents come from there. In that case, a change back to being paid by the pay center in Illinois might make the situation easier for USCIS to understand in the I-140 phase. However, if the PWD was done for that location, and under the company name and not the pay center, I fail to see what is wrong with it. Recruitment would then be conducted in the headquarters location. The payslip issue would looked at by USCIS in the next phase of your case, the I-140 petition, assuming that the labor certification is approved. If the company is using its various offices in different locations to issue payslips and W-2s, the company would have to provide an explanation concerning the relationship and how the company operates with reference to payment of its employees. If the company uses a PEO, a company explanation along with proof of its relationship with the PEO would be warranted. In that case, the company should also be the petitioning organization on the I-140 and not the company’s pay center nor PEO. Issues of who is the actual employer with rights to hire, pay, fire, supervise, or otherwise control your work may come into play along with requests by USCIS to document these points if the petitioner is one of the company branches or PEO. As this is a complicated issue, and you may not know all the facts, your company should work with its attorney to take the best course of action keeping you informed of its decisions.
2. J-2 dependent who has EAD approved is generally allowed to work in the U.S.
A reader asks,
I am in China and want to apply for J-1 or H-1B to work in the United States. My spouse will go with me. How can the spouse legally work? What are the options? Is there any way to exempt?
Mr. Lee answers,
The J-2 dependent of a J-1 visa holder is generally allowed to work in the United States upon application as long as the income is not being used to support the J-1 holder. The dependent would file an I-765 application for employment authorization at any time after arrival with USCIS paying the filing fee of $410 along with submitting requisite documentation (not onerous). The legend to place on the application for the category of work is C-5. H-4 dependents of H-1B visa holders find it more difficult to apply for work authorization as it can only be done when the H-1B holder is being sponsored for permanent immigration by an organization and has the I-140 petition approved (the step after obtaining a labor certification) or the H-1B holder has been approved for an extension of time past the normal allowable six year period of H-1B status as 365 days have elapsed since the filing of a labor certification application or I-140 petition. Please be aware (if you are not already) that J-1 visas for China nationals come almost exclusively with a two-year home residence requirement before the applicant is eligible for H-1B or L-1 (intracompany transferee) or permanent residence approval.
3. H-1B holders who already have H-1B visas in the passports would continue to travel in and out using the visas.
A reader asks,
I am working in the US and I am going back to China to visit my relatives. I heard that combo cards are issued separately now, so do I not have to worry about H-1B’s invalidation if I return to my home country?
Mr. Lee answers,
Combo cards combining I-131 Application for Travel Document advance parole and I-765 Application for Employment Authorization benefits in one card were discontinued by USCIS in April 2022. At this time, employment authorization is usually given faster than advance parole. Advance parole allows individuals free travel in and out of the US during the time that an I-485 adjustment of status application is pending. Without advance parole, most applicants are precluded from traveling. H-1B’s, however, are still allowed to travel during the adjustment of status phase without advance parole. Those who already have H-1B visas in the passports would continue to travel in and out using the visas. A point of decision arises for those without visas who wish to travel outside. Some fear that they may be denied H-1B visas while overseas, and so those would usually apply for advance parole and wait for it to be issued before safely leaving and returning to the US. A difficulty with advance parole at this time is that USCIS does not give these applications priority, and so advance paroles are usually approved between 6-12 months from the date of application. We note that the speed of adjudication is inconsistent as we recently had one approved within eight days of application while another pended 18 months. To discourage individuals from asking about their cases, USCIS has posted processing times of 14 months for the California Service Center, 11.5 for the National Benefits Center, 13.54 Nebraska, 16.54 Texas, and 7 for the Vermont Center.