DOL Issues with H-1B Labor Condition Applications
Now that the H-1B season is in full swing, employers need to be wary of falling into traps with their Labor Condition Applications. An employer's lack of familiarity with the problems surrounding the Department of Labor's new I-Cert system can make the difference between having an H-1B application counted towards the 2010-2011 cap, and missing it entirely. Employers must use the I-Cert system to obtain a certified Labor Condition Application (LCA). A certified LCA must be submitted with an H-1B application. But the DOL's problems with the I-Cert system have been causing H-1B denials.
Last year the Department of Labor rolled out its new "I-Cert" system for H-1B's, H-2A's, and PERM applications. H-1B employers are required to file LCAs electronically using the Department's LCA Online System. The LCA's for H-1B's includes declarations regarding the payment of prevailing wages for the position, and the working conditions offered. By law, the DOL must certify the LCA within seven days, unless it is incomplete or inaccurate. When completing the LCA, an employer must enter their Federal Employer Identification Number (FEIN) assigned by the IRS. When the I-Cert system initially started, long-established employers started receiving denials of their LCA's because the DOL could not verify the employer's FEIN. This happened to companies of all sizes, and even to companies that had been using the prior LCA program for years.
The DOL has since provided a rather weak "fix" to this problem. Employers can submit proof of their FEIN in advance of submitting an LCA. An employer who does this should receive confirmation from the DOL within a week, that the DOL has confirmed the employer's existence. Although this appears ridiculous to employers who have been in business and paying taxes to the IRS for years, it is ultimately a time saver. If an employer does not submit proof of their FEIN in advance, then a few days after submitting an LCA, the employer might receive a denial based on the DOL unable to confirm the employer's FEIN. The employer will then have to submit the proof of FEIN, and once the DOL confirms the employer's existence, the employer will have to submit a new LCA. Submitting the proof before filing the initial LCA can save one to two weeks.
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