H1B LCA No Longer Valid As Of Signature Date
Posted Dec 28, 2001

The INS Nebraska Service Center has informed representatives of the American Immigration Lawyers Association (AILA) that H1B Labor Condition Applications (LCAs) are no longer valid as of the petitioner’s signature date. LCAs will now be valid as of the date of approval by the U.S. Department of Labor (DOL).

By way of background, the INS previously regarded the validity date of an LCA to be the signature date stated by the petitioning employer. The H1B petition could not be approved unless and until the LCA was approved, but the validity date of the H-1 was not dependant upon the date of processing by DOL. This was a temporary accommodation by the INS since the DOL was experiencing delays and often taking over a month to certify the H1B LCA. This caused considerable concern for those employers who needed the H1B employee to start working right away. It was also of great concern in cases where the H1B employee's status was expiring and the only way to legally remain in the U.S. was to file the H1B extension with a copy of the LCA signed by the employer. NSC's position communicated recently to AILA in November / December 2001 is that the LCA will be considered valid as of the DOL approval date, not the employer signature date. This is a reversion to the procedure that was followed before 2001.

The LCAs are now being processed in a much more timely fashion by DOL. For that reason, it is reverting to the pre-2001 procedure. At the present time therefore, the LCA needs to be certified before the expiration of the previous H1B status in order to avoid gaps in status and INS denials of extension requests.

The consequence of this change in procedure is that H1B extension of status applications are denied when there is a gap between the applicant's H-1 status and the validity period of the LCA filed in support of the extension request. The time it takes the DOL to process the LCA after signature and submission can therefore cause denials of extension requests. Therefore, it is important to file the LCA without delay in order to obtain the earliest possible approval date. Of course, in the current economy with layoffs, cutbacks, and delays in obtaining new employment it may be impossible to file the LCA while the applicant is in H1B status.