December 13, 2010 - We received an H-1B visa waiver transfer approval for an internist who was employed at a J-1 waiver job, starting March 2010. After he started the position, in an apparent effort to reduce costs, his employer cut his salary from the amount agreed in the contract to a lower amount. The lower salary incidentally coincided with the prevailing wage determination amount. Due to the reduced salary, the physician sought new employment that can support a J-1 visa waiver transfer.

After he found a new waiver position in Alamosa, Colorado, we applied for a J-1 waiver transfer of his H-1B visa status. We argued to the USCIS that the reduction of his salary constitutes a breach of contract as well as a separate violation of the attestations contained in the Labor Condition Application filed with the Department of Labor. We further indicated that either of the two violations (violation of the LCA attestation or breach of the contract) should result in an approval of the waiver transfer. Along with the application, we submitted case law support for our position and requested premium processing.

We received a USCIS approval of the waiver transfer within the 15-day premium processing period which permitted the physician to afford sufficient notice to the former employer under the contract and start the new employment one time. The violation seemed clear in this instance and was enough to convince the USCIS to grant premium processing without a request for further evidence (RFE)