INS Continues to Permit H1B Filings Without Certified LCAs
Posted Mar 23, 2001

We have commented often in the MurthyBulletin about the U.S. Department of Labor (DOL) delays in processing of Labor Condition Applications (LCAs) for H1Bs. The form is faxed to DOL, and then DOL certifies it and returns it by fax. Even though federal law requires the DOL to certify the H1B LCA within 7 days, DOL is unable to comply with its statutory obligations and it often takes three weeks or longer to receive the certified LCA.

Having to wait for the LCA can cause significant delay in filing the H1B petition. Sometimes the delay could result in serious hardship, for example if the beneficiary's status was expiring. Therefore, several years back, INS indicated that they would allow an H1B petition to be filed with an uncertified LCA and proof of filing the LCA at the time of filing the H1B petition. INS would request the certified LCA later, in a Request for Evidence (RFE), and generally by the time the INS request is received, the certified LCA has also been received. Though this method means more work for the INS, William R. Yates, INS Deputy Executive Associate Commissioner for the Immigration Services Division, indicated on March 21, 2001 that INS would continue to allow it for now, though INS could change its position later on.

This position of the INS is particularly helpful in light of the portability provision in section 105 of AC21 since October 2000, permitting the employee to join the new employer upon filing the H1B petition, provided certain requirements are met. The petition can be filed without waiting for the certified LCA, and the employee can start working with the new employer upon filing the H1B Petition without the certified LCA.

Please note, however, that filing without the LCA is not always the best strategy. If there are issues on which INS may have further questions, such as proving the viability of the company, the relevance of the degree to the job, etc., then it is risky to file without the LCA. In such a case, as long as the INS is issuing an RFE for the LCA anyway, they may use that opportunity to ask for a wide range of other documentation. Obviously, it is a good idea to submit as much documentation as possible up front, including supporting documentation to show eligibility for the H1B. A thorough and detailed package is an important RFE prevention strategy.

INS has also indicated that if they do change their policy on accepting H1B filings without the certified LCA, they will make an announcement in the Federal Register, and the change of policy will only apply prospectively (to future cases), not to cases already pending at that time.