Handling Salary Changes After Labor Certification In Employment-Based Immigrant Cases
Employers grappling with changes in the business environment, such as economic instability and downturns, sometimes find it unavoidable to reassess and alter jobs and wages. In the immigration context, this may mean modifications in the prospective wage of an I-140 sponsored employee to an amount different from that reflected in the originally filed labor certification application. Such modifications have become increasingly common in recent years, as employers weather changes in the business climate while enduring labor certification and permanent residence processing times that have increased markedly. Changes to an employee’s prospective salary that occur after labor certification has been obtained can come under question during adjudication of the immigrant petition at U.S. Citizenship and Immigration Services (USCIS) or the visa application at a U.S. consulate abroad, as the adjudicating officer scrutinizes the application to determine whether material changes have occurred that affect the validity of the underlying labor certification or the foreign national’s eligibility to immigrate or adjust status. This article will demonstrate that such salary adjustments should not constitute material changes.
Salary Changes and Labor Certification Amendments
Under Immigration and Nationality Act § 212(a)(5)(A), foreign nationals who seek to immigrate to the United States for the purpose of working in the second or third employment-based immigrant visa category are inadmissible unless the Secretary of Labor has certified to the Secretary of State and the Secretary of the Department of Homeland Security that (1) at the time of filing an application for labor certification, qualified U.S. workers who are available, willing and able to fill the position cannot be found in the area of intended employment and (2) employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The labor certification process is intended to test the marketplace for the availability of such U.S. workers, using the employer’s bona fide job opportunity, including the offered wage for the position.
Once the labor certification has been issued for the position, amendments to the certification may not be made by the Department of Labor, including in cases where the foreign national’s salary has changed. A 1992 Department of Labor policy memorandum states that it is inappropriate for a certifying officer to amend any items on the certified ETA-750 that relate to the test of the labor market for U.S. workers, including the pay rate, job description and job requirements. According to the memorandum, the certifying officer may make amendments only where he or she made an error in processing the application. This policy has not been uniformly followed by the Department of Labor, but in most cases, amendments are limited to cases where flagrant errors have occurred. One option that certifying officers have accepted in certain instances is the inclusion of a letter explaining material that appears on the face of a labor certification.
Because in most cases labor certification amendments are not available, the salary changes will need to be addressed during USCIS adjudication of the permanent residence petition. The immigration service has wide authority to determine the materiality of any post-certification changes to the position and to determine their effect on the validity of the certification. Though the agency is not authorized to formally invalidate a labor certification unless there is evidence that fraud or misrepresentation of a material fact occurred during the labor certification process, USCIS will review the certification in the context of the foreign national’s overall eligibility for adjustment of status to permanent resident – including whether the material circumstances underlying the certification remain the same. Where changes are deemed immaterial, the petition or adjustment application will be approved, absent any other obstacles.
Immateriality of Salary Changes
Once a labor certification has been approved, the I-140 immigrant worker petition is submitted to USCIS, supported by documentation demonstrating that the employee meets the requirements for the position as set forth in the labor certification, as well as documentation showing the employer’s continuing ability to pay the stated wage. If, after the labor certification has been approved, the employee has experienced an upward or downward salary change, the petition should also be supported by evidence demonstrating that such modifications are not material changes affecting the validity of the underlying labor certification or the foreign national’s eligibility to immigrate or adjust status.
In order for the immigrant petition to be approved, the employer must continue to offer the employment as documented in Form ETA-750. Significant changes in the position or employer can jeopardize the validity of the labor certification for the purposes of immigrating or adjusting status to permanent residence, because they render ineffective the test of the labor market that the labor certification represents. But small changes that do not go to the heart of the position being offered should not affect the validity of the labor certification, as the immigration agency has clearly stated in its policy pronouncements on the issue.
In a 1993 memorandum issued shortly after the legacy Immigration and Naturalization Service took responsibility for handling amendments to labor certifications, then-Acting Associate Commissioner for Operations James A. Puleo addressed the issue of amendments. The memorandum dealt with a number of types of labor certification changes that, in the agency’s view, alter the offered position and affect the validity of the labor market test. Specifically enumerated in the Puleo memorandum are changes to the job requirements and employer relocations out of the standard metropolitan statistical area (SMSA) originally specified in the labor certification. Small changes, such as relocations within the same metropolitan area or employer name changes, must be communicated to the immigration agency, but generally would not call into question the validity of the labor certification. This policy is appropriate, as it takes into account common real-world situations that do not affect the job offer at its core, and does not force employers to recommence the lengthy labor certification process each time a minor change occurs. Significantly, changes in the foreign national’s salary are not enumerated in the Puleo memorandum as affecting the labor certification’s validity. This too is appropriate, given the basic labor certification principle that the employer is not required to pay the offered wage until the foreign national has been admitted as a permanent resident. Absent fraud or willful misrepresentation concerning the salary, if the employer has the continued intention of paying the offered wage, the labor certification continues to be valid.
Prior to the Puleo memorandum, the legacy INS addressed the issue of whether adjustments to the job offer made after the filing of an I-140 petition can invalidate the underlying labor certification. In response to a query on that issue, former INS Deputy Assistant Commissioner for Adjudications Lawrence J. Weinig stated that, absent fraud or willful misrepresentation, an adjustment to the job offer as set forth in the labor certification will not affect the validity of the certification or the I-140 petition, as long as the foreign national is performing the same job and in the area of intended employment. This conclusion was reached in the context of an employee whose compensation had risen substantially, to a level 40% above that specified in the labor certification. Weinig went on to comment that if the salary increase does not call into question the position itself, it should not affect the validity of the underlying labor certification. The Service indicated that the size of the salary differential was not in and of itself material to the labor certification’s continued validity; instead, it stressed that the crucial question was whether the position was the same as that delineated in the labor certification.
Though the immigration service has not officially commented on the effect of decreases in pay, the Weinig letter’s central conclusion supports the position that a new labor certification and I-140 petition would not be required where the foreign national has experienced a reduction in salary from that specified in the labor certification, but his or her position and job location remained the same. Indeed, decreases in salary are even less likely to jeopardize the validity of the labor certification’s test of the job market than increases. This conclusion is predicated on the fact that, if the position had originally been offered at a lower wage, fewer U.S. workers would have been interested in the job; thus, the wage differential would not constitute a material change affecting the validity of the labor market test, thus requiring a new labor certification application and a new I-140 petition. Further, officials from the immigration agency, as well as the Department of State and Department of Labor, have informally opined that as long as the actual wage is above the prevailing wage for the position, a salary lower than that specified in the labor certification would not be viewed as a material change to the job offered. In informal conversations and at immigration conferences, DOL officials have taken an analogous position in the context of labor condition applications and H-1B petitions, finding that wage decreases are not material where the actual wage meets or exceeds the prevailing wage, the decrease affects the actual wage range as it applies across the board for a given occupation in the area covered by the LCA, and the employer’s public access file has been amended to reflect the change. This is an appropriate policy, and recognizes that, where the employer suffers economic downturns, the wages and working conditions of U.S. workers are not disproportionately affected; rather, in such situations, U.S. and foreign national employees are affected equally. The policy is also appropriate given that economic change will naturally occur during the multi-year processing delays facing applicants to the Department of Labor and the immigration agency.
AC-21 and Post-Certification Salary Changes
Pursuant to Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21), “a petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to [INA §] 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed.” Accordingly, foreign national employees who have pending I-485 applications that have not been adjudicated for 180 days after their filing date are permitted to change jobs or employers without invalidating their underlying visa petition or labor certification. This provision of AC-21 recognized that, in the context of ever-increasing processing times for adjustment applications, to require an employee to remain with a particular employer at a particular job location for lengthy periods of time in order to maintain the validity of the visa petition or labor certification was unduly burdensome for both the employer and the employee.
Other than the requirement that the job be in the “same or similar occupational classification,” AC-21 § 106(c) does not contain any restrictions relating to changes in wages. A 2001 legacy INS memorandum supports this position, implying that salary information in these types of cases is relevant only “to determine whether the alien is admissible under the public charge ground of inadmissibility.” Therefore, if 180 days have elapsed since the filing of an I-485, and the foreign national accepts a qualifying new position, the fact that his or her new salary is different from that specified in the approved labor certification should not be problematic for purposes of the adjustment application, in the absence of regulations implementing AC-21.
Use of Supporting Documentation
Attorneys handling salary changes occurring after labor certification should be prepared to submit supporting documentation to address any materiality questions that may arise during adjudication of the immigrant visa petition and adjustment application. Central to the immateriality strategy is the submission of an employer’s letter reaffirming that the job offer set forth in the approved labor certification has not undergone material change. The letter should contain the following:
Our examination of the foundational principles of labor certification and employment-based immigration law, regulations and agency memoranda clearly demonstrates that salary changes occurring after labor certification do not adversely impact the effectiveness of the labor certification’s test of the labor market and by extension do not disrupt the foreign national’s ability to immigrate. The immateriality strategy outlined above has been supported by officials from the Department of Labor, the State Department and U.S. Citizenship and Immigration Services and has been used successfully to justify salary changes in cases in the USCIS regional Service Centers and in numerous USCIS District Offices and U.S. consulates.
 INA § 212(a)(5)(A), 8 U.S.C. § 1182(a)(5)(A).
 Donald J. Kulick, Administrator for Regional Development, Employment Training Administration, U.S. Department of Labor, “Amending Certified Labor Certifications,” March 30, 1992, reproduced at 69 Interpreter Releases 505 (April 27, 1992) (hereinafter “Kulick memorandum”).
 Note, however, that a November 2003 Department of Labor memorandum raises the possibility of making amendments to labor certification applications before final certification occurs. See William L. Carlson, Chief, Division of Foreign Labor Certification, “Processing of Regional Office Reduction in Recruitment (RIR) Requests, November 20, 2003, reproduced at AILA InfoNet at Doc. No. 03112119 (November 21, 2003). With the enormous backlogs plaguing many DOL regions – with some regions currently processing cases filed as far back as 2001 – the ability to make such amendments may be useful where salary changes have occurred.
 James A. Puleo, Associate Commissioner for Operations, U.S. Immigration and Naturalization Service, “Amendments of Labor Certifications in I-140 Petitions,” December 10, 1993, reproduced at 70 Interpreter Releases 1676 (December 20, 1993) (hereinafter “Puleo memorandum”).
 20 CFR § 656.30(d).
 Employment and Training Administration, Department of Labor, Technical Assistance Guide No. 656, Labor Certifications 34 (1981). “The employer’s guarantee to pay the prevailing wage is operative from the time a petition filed under Section 245 of the Act is approved, or from the time the alien enters the United States to take up the certified employment pursuant to the issuance of a visa by an American Consulate.”
 20 CFR § 656.31.
 Correspondence between Michael Friedberg, Esq., and Lawrence J. Weinig, Deputy Assistant Commissioner, Adjudications, U.S. Immigration and Naturalization Service, January - February 1990, reproduced at 67 Interpreter Releases 412 (April 30, 1990).
 The legacy INS has taken the position that no substitution of beneficiaries can occur where the beneficiary is paid a wage lower than that listed on the Form ETA 750. See American Immigration Lawyers Association, “ISD Liaison Report (9/6/01),” posted on AILA InfoNet at Doc. No. 01092833 (September 28, 2001). However, this position has been criticized, and it is arguable that it relates only to the employer’s ability to pay the wage.
 It should be noted, however, that the immigration agency has jurisdiction over changes to certified alien employment certification applications, including changes in salary or job duties, and is not required to consult with DOL officials on these matters. See Kulick memorandum, supra n. 1; see also Puleo memorandum, supra, n. 4.
 American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. 106-313.
 Michael Cronin, Acting Executive Associate Commissioner, Office of Programs, Immigration and Naturalization Service, “Initial Guidance for Processing H-1B Petitions as Affected by the “American Competitiveness in the Twenty-First Century Act” (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396), June 19, 2001, reprinted at 78 Interpreter Releases 1069 (July 2, 2001).
 Note, however, that if the foreign national moves to a new employer, that employer’s ability to pay the wage may be at issue. Though AC-21 does not specify that the new employer must demonstrate its ability to pay the wage stated in the labor certification, the legacy INS has taken the position that the new employer’s ability to pay is relevant. See American Immigration Lawyers Association, “ISD Addresses Concurrent Filing and AC-21 Ability to Pay Issues,” September 19, 2002, posted on AILA InfoNet at Doc. No. 02100371 (October 3, 2002).
 Id. See also “INS Discusses When Employer Must Establish Ability to Pay Wage,” 72 Interpreter Releases 432 (March 27, 1995).
Jonathan C. Adams is a Partner in the law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in the firm’s Iselin, New Jersey, office.
Nancy H. Morowitz is an associate at Fragomen, Del Rey, Bernsen & Loewy, LLP.
The authors wish to thank Howard W. Gordon, counsel to the firm, for his contributions to this article.