H1B Filings Temporarily Possible Before LCA Approval
Posted Dec 04, 2009
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The U.S. Citizenship and Immigration Services (USCIS) has temporarily revised its procedures for H1B filings. This change was needed due to delays and problems with the U.S. Department of Labor (DOL) system for processing labor condition applications (LCAs). H1B filings must be supported by LCAs (this should not be confused with the green card process of using labor certifications). The USCIS will temporarily accept H1B cases for filing, even before the LCA is certified. MurthyDotCom and MurthyBulletin readers were alerted to this change in our November 11, 2009 NewsFlash, USCIS Will Temporary Accept H1B Filings Awaiting LCA Approval.
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Background on DOL iCert Delays
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The DOL changed the system for LCA processing on July 1, 2009. Regular readers will recall our July 17, 2009 reminder of this change in, iCert in Place for H1B LCAs. This intentionally changed the prior system of instantaneous LCA approvals to one in which review-within-seven-days was the standard. Problems arose from the beginning, however, resulting in LCA denials and further delays, as described in our August 14, 2009 NewsBrief, iCert Glitch Causes LCA and H1B Delays. These problems have continued, and still create delays, as explained in iCerts Employer Tax ID Requirement Causing H1B Delays (Sep 18, 2009).
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These delays interfered with the timely filing of H1B petitions, since they must be accompanied by approved LCAs. This, in turn, generated requests to the USCIS to change its procedures, so that H1B filings could be made promptly, even when the LCA was delayed. The USCIS change is in response to those requests.
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Temporary Measure - LCA Pending Minimum Seven Days
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To address the LCA problems, the USCIS is now accepting H1B filings for which the LCAs have not yet been certified. This is a temporary measure, effective November 5, 2009 through March 4, 2010. This does not excuse the LCA requirement; it only provides a way to file the H1B petition in advance of the LCA certification by DOL.
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The employer must still attempt to obtain the LCA certification in time to accompany the H1B case. This rule can only be used if there is a delay in the LCA certification. The H1B petition must be accompanied by proof that a proper LCA was filed with the DOL and has been pending for at least seven calendar days. In these situations, when the USCIS reviews the case, a request for evidence (RFE) will be sent, asking for the certified LCA. The petitioner must submit the certified LCA in response to the RFE in order to obtain approval of the H1B case.
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Conclusion
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This USCIS position is a helpful and necessary accommodation to the problem of ongoing LCA certification delays, especially when the employee's earlier H1B status will expire in the near future. It should be emphasized that this in no way changes the need for a proper, certified LCA for the H1B approval. This change only relates to the employer's ability to file the H1B prior to the approval of the necessary LCA. We at the Murthy Law Firm hope that the DOL will address delays and other problems with the LCA system before March 4, 2010, when the temporary measure afforded by the USCIS is expected to sunset.