Labor Immigration Law

We wrote in late October and early November of 2009 about the USCIS Ombudsman’s recommendation that USCIS (1) accept H-1B filings without a certified LCA but with a proof of filed and pending LCA and (2) to excuse late H-1B filings where the delay in filing was caused by pending LCA or employer’s Federal Employed Identification Number (“FEIN”) verification.

In November of 2009, USCIS agreed to temporarily (for a period of 120 days) create a policy in line with the USCIS Ombudsman’s recommendations.   In a Memorandum dated as of January 28, 2010, by Alejandro Mayorkas addressed to the USCIS Ombudsman, USCIS announces that it will make permanent policy changes in line with the October 2009 Ombudsman recommendations.

USCIS Will Accept H-1B Petition With Evidence of Initial LCA Filing

H-1B petitions will be accepted with evidence of initial LCA filing if the H-1B has been filed at least 7 calendar days after the LCA was filed with DOL.   The petitioner must include a copy of the LCA submission’s email confirmation as evidence.

Petitioners who seek to use this H-1B filing procedure must wait until they receive an RFE before they can submit the already DOL-certified LCA in support of the H-1B filing.  The certified LCA must be the same LCA which was filed with the original H-1B petition, unless the petitioner provides an LCA which was certified prior to the submission of the H-1B petition.

Late Filings Due to LCA/FEIN Verification Delays Should Be Excused

In addition, USCIS has confirmed that it will continue to excuse late H-1B filings under 8 C.F.R. 214.1(c)(4) or 8 C.F.R. 248.1(b) when the delay in filing of the H-1B petition requesting an extension of H-1B stay or change of status to H-1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to employer’s FEIN verification issues.