USCIS Announces Acceptance of H-1B Petitions without Approved Labor Condition Applications (LCA)

 

USCIS has announced that it will begin accepting H-1B petitions without an approved labor condition application (LCA) from the Department of Labor between November 5, 2009 and March 4, 2010.

USCIS has announced that it will begin accepting H-1B petitions without an approved labor condition application (LCA) from the Department of Labor between November 5, 2009 and March 4, 2010.  USCIS initiated the 120 day-period after companies seeking to sponsor H-1B workers reported long delays in the processing of LCAs through the Department of Labor's new iCert

system.  H-1B petitions with LCAs pending longer than seven days may be submitted without the approved LCAs if the petitioner provides a copy an email receipt from the Department of Labor indicating proper filing of the LCA. 

The Department of Labor Office of Foreign Labor Certification (OFLC) made LCA filing through the iCert Visa Portal system mandatory on July 1, 2009.  The iCert system system attempts centralize and integrate the various duties of the OFLC and claims to increase security.  The system has been criticized for its failure to complete processing of LCA applications in a timely manner.  The system has also been criticized for delays resulting in the systems inability to match petitioning employer with FEIN numbers.

The LCA process is required in order for employers to sponsor H-1B and other nonimmigrant workers.  Through the LCA, the employer makes attestations regarding the prevailing wage, working conditions, strikes, lockouts, and other issues related to the possible displacement of U.S. workers.

The Chander Law Firm recommends that employers seeking to sponsor H-1B and other nonimmigrant workers be prepared for delays in processing due to the iCert system and the increased issuance of RFEs.

Related Links

Announcing the New iCERT Portal System for Temporary and Permanent Labor Certifications, 74 F.R. 17545 (Apr. 15, 2009).

Dept. of Labor, iCert Visa Portal System External User Guide (Apr. 2009).

Dept. of Labor, FAQs on LCAs (Sept. 9, 2009).

A complete copy of the USCIS announcement follows.

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USCIS Update: Temporary Acceptance of H-1B Petitions Without Department of Labor Certified Labor Condition Applications (LCAs)

 

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is announcing a 120-day period in which it will temporarily accept H-1B petitions filed without Labor Condition Applications (LCAs) that have been certified by the Department of Labor (DOL). 

USCIS has received requests from the public to accept H-1B petition filings that include LCAs that have been filed with DOL but that DOL has not yet certified.  Processing delays arising from DOL’s recently implemented “iCERT” system have resulted in increased processing times (beyond 7 days) for certain LCA certifications.  Affected employers and beneficiaries have reported being negatively impacted by DOL’s increased processing times which currently delays their ability to file H-1B petitions with USCIS.  DOL expects that the current increase in LCA processing times is temporary. 

As a public accommodation, USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.  However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings.  The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA. 

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition.  USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE.   USCIS will only approve H-1B petitions that include certified LCAs.

 

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Related Files

• USCIS Update: Temporary Acceptance of H-1B Petitions Without Department of Labor Certified Labor Condition Applications (LCAs) (1KB PDF)

 

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