USCIS Ombudsman Recommends Changes to LCA/H-1B Filing Process

In a formal recommendation to USCIS, its Ombudsman has reviewed the current H-1B filing requirements with respect to LCAs and has concluded that changes to the LCA/H-1B filing process are necessary to avoid a number of negative consequences prejudicing employees and employers alike.

The drive behind this policy review by the USCIS Ombudsman is a number of August and September 2009 complaints by H-1B petitioners where either (1) the LCA was incorrectly denied by the Department of Labor (“DOL”), or (2) the there were significant LCA processing delays and where such incorrect denials or delays caused substantial hardship to the beneficiary employee or the petitioner employer.   In many cases, untimely H-1B filings can lead to problems, including (a) the potential loss of employees’ legal status; (b) business operation disruptions due to the loss of continuity in the employment of key employees; and (c) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status.

The Problem

The main problem with the current LCA/H-1B filing requirements is that an H-1B filing requires that a certified LCA be included in the initial H-1B petition.   8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added].   Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added].

Despite this language, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.   Additionally, in connection with the April 15, 2009, iCERT LCA system transition, DOL has been denying LCAs based on federal employer identification number (“FEIN”) mismatches with the DOL’s own database (which is not necessarily up-to-date).  These FEIN-mismatch denials have been adding at least 10-14 days to the time it takes to certify an LCA and as a result have caused significant hardship to employers and employees who have been under a time constraint to file an H-1B petition.

The USCIS Ombudsman Recommendation

The recommendation put forward by the USCIS Ombudsman is nothing revolutionary.  In fact, it seeks a return to previous guidance by legacy INS.    In 1992, the legacy INS responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA.  This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

The Ombudsman recommends similar two-part solution:

1. Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and
2. Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

An important note is that this is not a policy change.  It is merely a formal recommendation of a policy change by the USCIS Ombudsman.  We hope that this policy will be considered and put into effect by USCIS to eliminate the negative effects the current policy has on employers and employees alike.