New LCA System Delays the H-1B Filing

Jian Joe Zhou (email jzhou@hooyou.com)

In any H-1B petition filing package, a Department of Labor certified Labor Condition Application (LCA) form is required.  Therefore, before filing an H-1B petition, an employer or its attorney must receive the approved (certified) LCA from the DOL.  The approved LCA must be submitted with an H-1B filing package; otherwise, the H-1B petition will be denied.

In the past, LCA filing did not delay the H-1B filing process as the DOL online filing system usually approved cases immediately upon submission. 

However, effective July 1, 2009, DOL implemented a new online LCA system, the iCERT Visa Portal System, which takes up to 7 business days to approve a LCA online filing.  This created new issues for H-1B filings, especially, for those who need to transfer jobs immediately or those who have to compete for the quota. 

In the past, when an H-1B worker changed employers, an employer with the assistance of an attorney could prepare the filing package technically within one day, and submit their petition to USCIS by overnight shipment.  By taking advantage of the H-1B portability rule, the H-1B worker could start working the same day the package was delivered to USCIS.  Thus, it could take only 2-3 days between initiating the preparation of an H-1B case to the alien being allowed to start working legally for a new H-1B employer. 

However, with the new system, we have experienced some LCA filings have taken up to the legally allowed maximum of 7 days to certify the application.  Therefore, even when an attorney has all other documentation ready, it may still take around 10 days from beginning an H-1B case to the actual date the H-1B petition can be delivered to USCIS. As such, the date the alien can legally begin working will be delayed. 

This will be problematic to those H-1B workers who will file new H-1B transfers after they have been laid off.  The H-1B portability rule has a requirement that an H-1B worker must be in a valid non-immigrant status when a new H-1B petition is filed.  USCIS has the discretion to waive small gaps in status. The new LCA filing process will significantly delay the filing process and increase the risk that USCIS may consider that the H-1B worker has been out of status, thereby preventing the worker from taking advantage of the portability rule, and ultimately deciding not to issue a new I-94 status document.  In such a case, if an H-1B petition is approved, the alien has to travel overseas to apply for a new H-1B visa to reenter the U.S.  Such a procedure is certainly a burden to an alien and his new employer, delaying the alien’s ability start a new job in a timely fashion.

The H-1B quota has remained available for an extended period this year. However, this may change in the future. For those who need to compete for new H-1B quota, it is certainly a significant risk if an H-1B cannot be filed in a timely manner due to a delay in the LCA’s approval.

There are a few solutions to this problem. First, employers and employees should be aware of this new system and prepare H-1B applications as soon as possible to avoid a lengthy gap. Second, employers who believe they will sponsor numerous H-1B transfers in the future can certify labor certification applications first without any specific employees in mind. Later, these certified forms can be used for any nonimmigrant worker who fits the position. This option should be discussed with a qualified attorney who has experience with H-1B petitions.

Third, if a gap in status does occur for an alien worker (so long as the gap is not extensive or unreasonable) USCIS may approve the H-1B transfer through consular processing. The employee may have to go to the overseas consulate and re-enter with H-1B status. Should you expect a lengthy out of status time period between H-1B employments, please discuss your options with an attorney.

Overall, the new LCA certification system will stretch the H-1B preparation and filing process to around 10 days. This lengthened process will certainly affect many employers and employees. However, by cooperating with an experienced attorney, one can be prepared to deal with possible drawbacks to the new system and minimize any negative impact.

In addition, we have voiced our concerns with the DOL and urged the DOL to increase the efficiency of the new LCA system.  We have also seen some improvement of the new system as some LCA filings were approved in 3 business days this week.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past thirteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(07/27/2009)

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