Legal Question in Immigration Law in California

Yes, it can be denied. Your employer was obligated to honor the LCA terms. Instead, they had paid you twice less than promised in the LCA.

You should consult an immigration attorney and decide what is the best course of action for you.

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If the employer doesn't provide sufficient information in response to a request for evidence, the I-140 would be denied, if it has not been approved or it could be revoked if approved. If you got a new H-1 employer, you might be able to port to a new employer if your I-94 is still unexpired. Getting a new job offer might be the best course of action - depending on more information. I know how difficult that is.

You have a serious problem regarding the wage payment, depending on more specific details. If violation of status occurred within 180 days of your last entry, you could qualify for 245(k) relief and still qualify. It's unclear whether if you departed now if that would cure the problem. This is an advanced issue which requires legal research of an unusual situation unless a lawyer has handled something just like this - where violation of status is questioned in a Request for Evidence on an I-485. If the I-140 is being questioned, then it will come down to whether the employer can otherwise show ability to pay your wage and their intentions. The government is looking for fraud, so the worst would be such an accusation which would be extremely difficult to overcome on your employer's part. How your I-129 on the H was prepared - if you worked part-time at a lower wage - could reveal some important data, as well as the wage offered on the labor certification (assuming there was a labor cert.) You will likely get differing answers to this question.

To get to the bottom of whether there is anything to save the case, you is the written authority or citation of the opinion you get from lawyers to make sense of this.

Without 245(k), your I-485 will be denied. If that happened, then the next question is whether the case could be transferred abroad and successfully handled there. This will come down to minute details of the facts which require further examination of approvability of the I-140..

Time is of the essence as if travel could cure the problem, it may need to be undertaken quickly and documented as part of the RFE. From what you describe, travel would be risky, but might be the only solution. Then again, travel may also really be insufficient.

You should not act on the above. It is not legal advice and doesn't establish an attorney client relationship. You may contact me directly. My website for further information is http://www.yardum-hunter.com.

Sincerely,

Alice Yardum-Hunter, Attorney at Law, Certified Specialist

Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization