USA IMMIGRATION NEWS

DOL denying Labor Condition Applications

Thursday, 5 November 2009

The Department of Labor's (DOL) newly implemented Labor Condition Application (LCA) online system known as iCert, has reportedly led to numerous delays in obtaining certification of LCAs. Consequently, U.S. employers and foreign workers alike have been significantly impacted by the delays as the LCA is a prerequisite for filing an H-1B petition for a professional worker.

The process for obtaining or extending an H-1B visa for a nonimmigrant worker begins with an American employer first obtaining certification of their LCA from the DOL. In the LCA, the employer is required to attest that the H-1B employment will not adversely affect the wages and working conditions of similarly-employed US workers. Specifically, the employer is attesting that they will pay the prevailing wage paid to American employees in the same position and that employing the H-1B worker will not impact the working conditions of Americans.

Until the DOL's newly instituted iCert portal was implemented, this used to be a relatively quick process that was rarely, if ever, challenged. Since implementation of the iCert portal however, the process appears to have now become more challenging for U.S. employers.

The iCert portal effectively eliminated same day LCA approvals, in favor of a system that the DOL originally anticipated would take up to seven business days to certify. However, since its implementation the iCert system has reportedly experienced a number of technical glitches that have resulted in delays in obtaining certified LCA's beyond the seven day period.

The most prevalent glitch identified with the iCert system has been the denial of LCA's, in cases where the DOL cannot verify the employer's Federal Employment Identification Number (FEIN).

Consequently, employers cannot move forward with their H-1B petitions and individuals with H-1B status are unable to extend their status without the certified LCA.

Particularly vexing to employers is the notion that the DOL has somehow arrived at the determination that their FEIN is incorrect or unverifiable, despite having used the same FEIN for many years.

In these cases, the employer is then required to provide verification of the FEIN, and may only use certain specified documents for this purpose. The FEIN verification process itself takes about 5 business days after which, if verified, the employer must again file the LCA using the iCert portal and wait another 5-7 days for certification. It has been reported that in some cases, after verification, the LCA is again denied and the employer must begin again.

Adding to the problem is that the specific documentation required for FEIN verification has also been difficult for some employers to provide because they do not always have the required documents readily available, which then causes further delay.

In support of a valid FEIN number, employers are encouraged to submit documentation or evidence generated directly by the Internal Revenue Service (IRS), because FEIN's are issued by the IRS. It is believed that materials generated by the IRS which clearly bear the employer's name and FEIN number offer the best chance for quick and effective verification by the DOL.

The DOL has stated that they are attempting to resolve these issues by upgrading its iCert database system to account for FEIN numbers previously verified in the course of separate DOL proceedings, which should help to reduce the number of erroneous LCA denials for U.S. employers. However, until the issues are fully resolved employers have been advised to take preemptive measures to help lessen their impact. Notably, employers s have been encouraged to locate acceptable tax documents that verify the company's FEIN and have them available in advance in the event of an LCA denial based on FEIN. Also, employers have been advised to consider initiating FEIN verification themselves, in advance, before submitting LCA's for processing. This will allow employers to expedite the verification process for any subsequent LCA filings should the need arise.

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