USA IMMIGRATION NEWS

USCIS Temporarily Accepts H-1B Petitions Without DOL Certified LCAs

Tuesday, 17 November 2009

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will temporarily accept H-1B petitions filed without Department of Labor (DOL) certified Labor Condition Applications (LCAs) for a period of 120-days.

This initiative was established in response to the significant processing delays caused by the newly implemented iCERT system and a public outcry for the USCIS to accept H-1B petition filings with LCAs that have been filed with, but not certified by, the DOL. This temporary measure will be effective during the period of November 5, 2009 through March 4, 2010.

The iCERT system was implemented in May 2009 in an effort to streamline the electronic application system for filing LCAs and Forms ETA 9089. Effective May 15th, 2009, the previous LCA legacy system was deactivated and the use of iCERT became mandatory. Utilizing the LCA legacy system LCAs were routinely approved instantly or, at most and in rare instances, within seven (7) days. In contrast, under the new iCERT system processing times have increased to more than seven (7) days in many cases. As such, affected employers and beneficiaries are unable to file their H-1B petitions in a timely manner.

It is important to note that the USCIS will only accept H-1B petitions without DOL certified LCAs if the petitions are filed at least seven (7) calendar days after the LCAs were filed with the DOL. Further, such H-1B filings must include evidence of LCA filing with the DOL. The USCIS will only accept a copy of the DOL’s email receipt notice as evidence of the LCA filing.

Employers who take advantage of this temporary measure will also be required to wait until a Request for Evidence (RFE) is issued by the USCIS in order to submit the DOL-certified LCA in support of the H-1B petition. The USCIS will provide petitioners with thirty (30) calendar days within which to, obtain the certified LCA, and respond to the RFE. Although this new measure permits petitioners to file the H-1B petition without a DOL certified LCA, the USCIS emphasizes that it will only approve H-1B petitions that include certified LCAs.

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