ASK SISKIND AND SUSSER

Question: I just received a raise and "promotion" to a position with a better title. My duties are still identical to what they have been. My employer has filed a labor certification for me, but we have not yet received an approval. Is my labor certification in jeopardy?

Answer: The answer depends on several factors. First, salary increases are expected to occur as part of the normal course of employment. However, the Department of Labor is concerned about 1) whether the employer deliberately kept the salary low during the recruitment process in order to deter applications by US workers and 2) whether the employee is really working in a new position for which a new labor certification application would be appropriate. While your application is pending, you must inform the Department of Labor about a salary increase. If the original salary paid to you was within five percent of the prevailing wage AND the job was advertised with a salary range starting with the prevailing wage and going to at least the newly offered wage, you will be okay. If the offered wage is a flat amount below what you are now being paid, the Department of Labor might hold that the increase affects the legitimacy of the recruitment campaign and the employer must recruit again. The chance of being challenged will probably depend on how much the increase is over the offered wage.

If your employer waits until after the labor certification is approved but before permanent residency is approved, the rules are somewhat easier. Increases of five to ten percent are considered normal and are not likely to be challenged by the Immigration and Naturalization Service. Increases over ten percent are somewhat more likely to be challenged by INS for the same reasons a salary increase would be challenged while the labor certification is pending. However, INS rarely challenges salary increases unless they are extreme.

As for your change in job title, you should not really have any problems since your position involves all of the same duties. You would have problems if your job duties changed substantially, however.

Question: I am considering working in the US for a few months this year, but I am concerned about being taxed on my worldwide income by the US government. Should I be concerned?

Answer: Whether you are taxed on your worldwide income by the Internal Revenue Service depends on how long you are in the US each year and what your residency status is. You are always subject to being taxed on your worldwide income as a resident alien if you are a lawful permanent resident of the US at any time during the calendar year or you meet the IRS' substantial presence test. The substantial presence test states that if the alien is in the US in a calendar year for more than 30 days and the total days the person was in the US in that year and the two proceeding calendar years equals or exceeds 183 days based on this test:

1. All of the days in the calendar year plus
2. One third of the days in the previous year plus
3. One sixth of the days in the second preceding year.

If you have been here less than 183 days in the calendar year and you can show you have a home and a closer connection to a foreign country, you can also claim to be exempt from taxation on worldwide income.

Students in F, J, M, or Q status are exempt from being treated as a resident alien as well as teachers or trainees in J or Q status.