Wage in Labor Certificate

[peterlee]

What is the name of your state (only U.S. law)? CA

The story like this. The labor cert indicates that the rate is $20.00/hour, but the employer just pays $10.00/hour to him. The foreign worker does not care about the actual pay and accepts $10.00/hour for several years. After the G.C. is approved and the owner pays him $12.00/hour. After 2 years he receives the G.C., the foreign worker was fired. Then the foreign worker filed a lawsuit in court and claims the underpay with evidence of the Labor Cert as well as the employer letter to INS in which the employer says that his rate will be 20.00/hour when his G.C. is approved. The former employer alleges that the foreign worker was aware that he would not be paid $20.00, the rate is just good for his applying his G.C. Also the owner says e rate of $20.00 is for another job title, which is different from his. In return, the foreign worker states that the job description in both Labor Cert. and the Letter to INS is the same as his actual daily work. The job description has to go generally with one of job category provided by Labor Dept., not to be exactly the same. Otherwise there will be thousands of job categories.

Please help advise who is correct? The foreign worker can get the money back from the underpay through lawsuit? Does the wage lawsuit impact his citizenship application?

Thank you.

 

[Proserpina]

What is the name of your state (only U.S. law)? CA

The story like this. The labor cert indicates that the rate is $20.00/hour, but the employer just pays $10.00/hour to him. The foreign worker does not care about the actual pay and accepts $10.00/hour for several years. After the G.C. is approved and the owner pays him $12.00/hour. After 2 years he receives the G.C., the foreign worker was fired. Then the foreign worker filed a lawsuit in court and claims the underpay with evidence of the Labor Cert as well as the employer letter to INS in which the employer says that his rate will be 20.00/hour when his G.C. is approved. The former employer alleges that the foreign worker was aware that he would not be paid $20.00, the rate is just good for his applying his G.C. Also the owner says e rate of $20.00 is for another job title, which is different from his. In return, the foreign worker states that the job description in both Labor Cert. and the Letter to INS is the same as his actual daily work. The job description has to go generally with one of job category provided by Labor Dept., not to be exactly the same. Otherwise there will be thousands of job categories.

Please help advise who is correct? The foreign worker can get the money back from the underpay through lawsuit? Does the wage lawsuit impact his citizenship application?

Thank you.

The lawsuit will not adversely impact the citizenship application, no.

The employer can often legally pay an employee a lower wage than is stated on the Labor Certification provided that the amount is not less than the "prevailing wage" for a similar position in the general geographic area. So if the prevailing wage is $10/hour, the employer can usually pay this amount without facing penalty even if the wage initially stated is substantially more than this.

The fact that this employee accepted this lower amount for two years might bar the employee from taking legal action against the company at this point - the time to address it was when the change was initiated.

It is unsure at this point whether he has a legitimate cause of action - speaking with an attorney would be the best advice at this point.

 

[peterlee]

Thank you for yr info

The prevailing wage approved from Labor of Dept. is $20.00. The statute of limitation for the claim is 3 years. Thank you for your help.

Yes, will consult with an attorney.

 

[peterlee]

Thank you for yr info

The prevailing wage approved from Labor of Dept. is $20.00. The statute of limitation for the claim is 3 years. Thank you especially for the info that civil lawsuit will not impact for applying citizenship.

Yes, will consult with an attorney.

 

[Proserpina]

The prevailing wage approved from Labor of Dept. is $20.00. The statute of limitation for the claim is 3 years. Thank you for your help.

Yes, will consult with an attorney.

You're welcome!

I do want to check exactly when the SOL actually starts ticking and whether accepting the reduced wage impacts the employee's ability to file a cause of action.

 

[peterlee]

What is SOL?

Hi, Dogmatique;

Thank you for your message again. What is SOL?

You think if I file the claim in court, I will win? I know nobody can tell win or lose beforehand, but I want to hear your opinion.