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.

The USCIS' attempts to accommodate H-1B petitioners frustrated by DOL delays actually muddied the process even further. USCIS announced last November that it would accept H-1B petitions without the approved LCA, if the employer could show that the LCA was already filed with the DOL and had been pending at least 7 calendar days. Then, the USCIS would request the certified LCA, and by the time the employer received this request from the USCIS, the employer would have received the certified LCA and would then send it in to the USCIS. However, at the end of January the USCIS clarified that it would only accept the later submitted certified LCA's if they were the same LCA originally submitted to the DOL. So if the originally submitted LCA was denied because of the DOL's inability to confirm the employer's FEIN, and if the employer had submitted the H-1B with proof of that particular LCA pending longer than seven days, the USCIS would deny the H-1B petition since the LCA was ultimately denied. It did not matter that the DOL's denial of the LCA was due to its own incomplete FEIN database. It also did not matter that the next LCA filed was ultimately approved.

However, the USCIS is only allowing this temporary filing of H-1B's without the certified LCA through March 9, 2010. At this point, the USCIS is not extending this policy beyond March 9, 2010. Unless the USCIS announces otherwise, applications submitted for the 2010-2011 fiscal year need to include a certified LCA.

In summary, to avoid unnecessary delays with the LCA: (1) A certified LCA must be filed with an H-1B application; and (2) For employers using the I-Cert system for the first time (even if they have submitted H-1B petitions in the past), submit proof of FEIN to the DOL BEFORE submitting the LCA online. Wait to submit the LCA until receiving a confirmation of the employer's FEIN from the DOL.

H-1B Visas, Work Visas / by Michelle Gee