USCIS Temporarily Accepts H-1B Petitions Without
Certified LCAs
Last December, the Department of Labor (DOL) announced that due
to heightened incidents of fraud in H-1B filings, it would start
closely scrutinizing the Labor Condition Applications (LCA), which
must be certified by the DOL before H-1B petitions can be filed.
This caused a delay in filing many H-1B petitions as LCAs can take
more than seven days to adjudicate when further investigation is
required, such as for proper wage determinations. In addition, there
are additional delays when the DOL sends a request for proof of an
employer’s federal tax ID number (FEIN). In some cases, employers
were experiencing a two to three week lag time between filing and
receipt of an LCA approval.
On November 5, 2009, the USCIS announced the temporary acceptance of
H-1B petitions without requiring an underlying certified LCA,
provided the LCAs remain pending with the DOL. The temporary
acceptance period will begin on November 5, 2009, and end on March
4, 2010.
However, USCIS will not approve the petitions until it receives an
approved LCA. Those employers who submit an H-1B petition without an
approved LCA will subsequently receive a request for evidence asking
for documentation of the approved LCA within 30 days.
According to the USCIS Ombudsman, the temporary change in policy
represents an effort to mitigate LCA processing delays caused by
errors in the DOL’s new iCert system. The iCert glitches result in
the DOL erroneously denying LCAs based on false FEIN mismatches, among other problems. In turn, the
denied LCAs prevent the filing of the H-1B petition, thus
potentially causing the loss of wages and legal status to the worker
resulting in business operation disruptions to the company.
As a result of the quick jump in the H-1B cap case count and the
delays in processing the LCAs, employers are urged to prepare and
file any potential H-1B cap-subject petitions as soon as possible.
We expect that the cap will be reached in the coming weeks. We
encourage you to look ahead and assess the employment needs of your
foreign national staff, including new hires and those employees
currently participating in practical training such as students (F-1)
or exchange visitors (J-1).
Please note that employers generally will not need to obtain new
H-1B visas for lateral H-1B hires. Further, institutions of higher
education, nonprofit research organizations, and government research
organizations continue to be H-1B cap exempt.
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