USCIS Will Accept H-1B Filings Without Certified Labor Condition Applications

On November 11, 2009, the U.S. Citizenship and Immigration Service (“USCIS”) announced that it will  temporarily accept H-1B petitions filed without certified Labor Condition Applications.  Previously, H-1B petitions required Labor Condition Applications (a/k/a “LCAs”) to be certified by the Department of Labor prior to submission.  LCAs require that the company agree to comply with the requirements of the H-1B visa program, and confirm that the company is paying at least the “prevailing wage” for the position.  These requirements ensure that foreign nationals are paid at least what the average U.S. worker is paid for the same type of work, and that U.S. wages are not depressed by bringing in foreign workers.

This new USCIS policy is a result of the recent changes by the Department of Labor in its system for certifying LCAs.  Many immigration attorneys have found the new process to be time consuming, frustrating, and prone to erroneous rejections.  For example, LCAs have been rejected because the Department of Labor states that the company’s federal Employer Identification Number (“EIN”) is false.  The company must then submit proof that the number is valid, such as providing the letter from the Internal Revenue Service issuing that number to the company.  After a week or more, the Department of Labor will acknowledge that the company did provide the correct EIN number in the filing.  However, the Labor Department then requires the company to resubmit a new LCA, taking yet still more time before the application can (finally) be certified.  The problems with this new certification system have caused countless delays in bringing in workers with essential skills, and have cost U.S. companies money and clients.

This new policy by the USCIS promises to help speed up the filing of H-1B visa petitions, and prevent needless and frustrating waits for LCA certification.  We appreciate that the USCIS recognizes the problem, and have taken steps to solve it.  Now when will the Department of Labor actually fix the problem with their certification system?  At the very least, the DOL should get a database with correct company names and Employer Identification Numbers from the IRS to prevent some of these issues.

Karol Brown
Immigration Attorney

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