My PERM and I-140 has been approved for over 2yrs. Green card is not issued. My employer is not paying prevailing wage. Difference in current wage including bonus to prevailing wage is over $10k. What are my options here? If I report my employer will it affect my Green card application with current or future employer? If I change my job and then report my current employer will I receive back pay? I requested raise and was denied does that count or not?
Has your I-485 (green card application been submitted and has it been pending for 180 days or more? If so, you can "port" move to another employer in a same or similar job who is willing to adopt your pending case and notify immigration in writing of the job and pay you the same as your Prevailing Wage. Option, 2, stick it out until you get your green card and then leave and report your former employer to the Wage and Hour Division of the Department of Labor. They will investigate the case and your employer will be on the hook for back pay and damages. Asking for a raise and not getting one is not a basis for a Prevailing Wage Determination violation. Underpaying you in contravention is. You may have a cause of action (legal basis under MI employment law-I do not know, I am not licensed in MI, and you should also consult a MI employment lawyer) BUT on the immigration portion of your case the WHD of DOL has jurisdiction to sanction your employer. And believe me they will! Good luck.
Generally speaking, the prevailing wage does not have to be paid until you become a lawful permanent resident, which will not happen until your I-485 is approved. This is because the employer is promising to pay this wage in the future, when you are admitted for permanent residence. However, the employer's failure to pay the prevailing wage now could cast doubt on its ability or intention to pay when the requirement takes effect.
Before you do anything, you should consult with an attorney to get advice on your options and the relative advantages and disadvantages. No competent attorney can give you accurate advice here with only partial details and no document review.
The answer above is only general in nature and cannot be construed as legal advice, given that not enough facts are known and detailed research has not been undertaken. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers require an investigation into all facts about your case. Any answers offered on Avvo are of a general nature only and are not meant to create an attorney-client relationship. Use these answers at your own risk.
3 lawyers agree
I'm not sure what your current status was when you were not being paid, but since you checked the H-1B label for this question, let me tell you that if you're are or were working under the H-1B program, your employer is required to pay the prevailing wage from the first day on your LCA.
Like my colleagues said, you should consult with an attorney and I'm sure anyone who replied would be happy to help.
I hope you found this response to be helpful. If so, please click "best answer" and/or "helpful." Avvo is a a very useful resource, but does not create an attorney-client relationship, and cannot replace an in-depth consultation with a lawyer. Steven Krieger Law, PLLC