USCIS to Temporarily Accept H-1B Filings Without Certified LCA

Two weeks ago we wrote about the USCIS Ombudsman recommendation to modify the LCA/H-1B filing process to avoid negative consequences associated with delayed LCAs.

As a response, USCIS just announced a temporary change in policy pursuant to which it will temporarily accept H-1B petitions filed without Labor Conditions Applications (LCA) that have been certified by the Department of Labor.  USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.  However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

This does not mean that H-1Bs will  be approved without certified LCAs.   USCIS will still require certified LCA to accompany the H-1B petition before it can be approved.   As a result, petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.