U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

This temporary processing modification by USCIS will provide welcome relief to employers experiencing delays associated with obtaining LCA certification through the DOL's iCert online filing system. Employers will now be able to meet filing requirements, preserve the legal status of employees, and avoid employment interruptions while DOL resolves LCA processing challenges through its iCert system.

To qualify for this exception, an employer must show that an LCA has remained uncertified for at least seven days from the date of filing. USCIS will reject all filings that do not meet this seven-day rule. In order to prove compliance with this rule, H-1B petitions must include a copy of the DOL's email providing notice of receipt of the LCA.

When an H-1B petition is filed pursuant to this temporary accommodation, USCIS will issue a Request for Evidence (RFE) requesting a copy of the certified LCA. USCIS has stated that employers will only be given 30 calendar days to respond to the RFE with a copy of the certified LCA. Failure to provide a certified LCA within this period of time will result in a denial of the H-1B petition.

Ideally, the DOL will resolve the delays and erroneous denials associated with certifying LCAs before March, 4, 2010, when the temporary USCIS accommodation ends, particularly as the FY2011 H-1B cap opens just a few weeks later (on April 1, 2010).

This entry was written by Ian Macdonald.