New DOL System iCert for H1B LCAs - Part 1 of 2
Posted Feb 20, 2009
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The U.S. Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) has announced a new system, known as iCert. This new OFLC visa portal will replace the current online systems used for H1B labor condition applications (LCAs), as well as for PERM labor certifications (LCs). The DOL held public briefings on the new systems, including one in February 2009 which was attended by several Murthy Law Firm attorneys. The first of this two-part article explains the changes with respect to LCAs. The LC changes will be explained in part two.
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Single System of iCert for Modified LCAs and PERMs/LCs
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The iCert system will require employers or their representatives to set up accounts through which to file Forms 9089 (LCs) and 9035 (LCAs). The LCA and PERM/LC forms will be modified, but the form numbers and basic legal requirements will not change.
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Timeline for Implementation of LCAs for H1Bs
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The LCA will utilize the iCert program before the LC. The 2009 timeline for the LCA changes is as follows.
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April 15 New LCA Form 9035 will start processing through iCert.
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May 14 Last day to file current LCA form through pre-iCert system.
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May 15 Pre-iCert system available only for status checks and withdrawals.
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This timeline means that employers will need to become familiar with the new system and start using it within the next few weeks. One drawback is that there will no longer be the quick online approvals from the DOL for LCAs like before. Employers will need advance planning to file the LCA and obtain H1B approvals.
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No More Instant Online Approvals for LCAs
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The OFLC Chief of Operations stated that users of the LCA program should not expect instantaneous certifications of the LCA on Form 9035. The regulation allows DOL seven working days to certify the LCA, once submitted. The DOL declined to estimate actual processing times. While the DOL intends to be mindful of the regulatory requirement, it cautions that it is not under any obligation to adjudicate LCAs with obvious inaccuracies or errors within the seven-working-day timeline. DOL expressed belief that there has been abuse of the current instant-approval system, and that a slower system will serve to ensure that the LCA program is used as intended by law.
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This is a significant change that will slow the entire H1B filing process. In order to file an H1B case, it is necessary to have a certified LCA. If LCAs are going to take more than a week for certification, H1B case filings will be slowed significantly. This is reminiscent of the time when waiting for LCA certification was standard practice.
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Employer Must Have Identification Number and Online Filing
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The form requires an employer to have a federal employer identification number (FEIN). An individual's Social Security number will not be accepted from an LCA filer. When an employer has in-house counsel filing the LCA, that attorney's data is expected to be placed in the fields for the employer point of contact and not in the attorney or agent information. Furthermore, the new LCA form has separate fields for a preparer and the employer's attorney, meaning that a paralegal preparing it for submission could be identified, along with the attorney.
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The revised LCA form will have to be submitted online through iCert. Any party wishing to file the LCA by mail will require preauthorization to do so, with the DOL recognizing the need for employers without access to the Internet.
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Multiple Work Locations May Be Listed on New LCAs
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The DOL, recognizing that the LCA can be used for multiple workers, has modified the form to allow up to three (3) locations to be listed. For each site, the form requests a physical location be described in as much detail as possible. While there may be a warning if the only data provided is a city and state, the DOL reports that it should be sufficient for certification. The Temporary Programs Manager took this opportunity to emphasize the existing requirement that a notice must be posted in two conspicuous locations, where other workers have an opportunity to view it before filing the LCA.
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LCA Form Revision to Classify Nature of H1B Employment
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The LCA form has undergone some major revisions. One of the most noteworthy changes in the LCA was made at the request of the USCIS. The total number of workers the LCA is intended to cover is required. Sub parts request these workers be broken down into categories of worker classifications set out on the USCIS Form I-129. Thus, the employer must specify the number of the workers to be classified as new employment, continuation of previously-approved employment without change, change in previously-approved employment, new concurrent employment, change in employer, and amended petition. It is expected that the USCIS will use this data in some way, but the exact purpose is unclear as yet.
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SOC System Mandatory
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With this new form, the Dictionary of Occupational Titles (DOT) is relegated to the dustbins of history, while the Standard Occupational Classification (SOC) system becomes mandatory. Information regarding the SOC system is available from the DOL's Bureau of Labor Statistics and O*Net Center.
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Definition of Full-Time Job
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In this discussion, the DOL reminded attendees that a full-time job is at least 35 hours per week. When questioned about some occupations that define full time differently, like teaching positions, etc, the DOL replied that guidance currently in effect is not being changed. The OFLC is only changing the data being collected. The possibility of part-time H1B employment was covered in our December 5, 2008 MurthyBulletin article, Part-Time H1B Helpful in Recession.
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Conclusion
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The efficiency and operation of the new system remains to be seen. The delays in the LCA approval will certainly have an impact on H1B filings. The single filing location may have compliance implications, if data on LCAs is inconsistent with LC filings. More information on the changes in LC filing procedures and the changes in the forms will be provided in the second part of this article. We will explain other matters related to the new iCert system, which will impact many MurthyDotCom and MurthyBulletin readers.
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