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When it Comes to Immigration, Does the Right Hand Always Know What the Left Hand Will Do? 11/16/2009

Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
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By Donald W. Parker and John J. Gallini

Immigration Attorney Donald ParkerU.S. Citizenship and Immigration Services (“USCIS”) is now trying to streamline a process made more complex by the U.S. Department of Labor (“USDOL”). A requirement for the filing of any H-1B visa petition is the advance receipt of a certified Labor Condition Application (“LCA”) from the USDOL. Until 2009, these Applications, which contain attestations by the employer about the salary to be paid to the sponsored foreign worker and her working conditions, were submitted electronically, reviewed by a computer and certified within seconds of the time of submission if filled out properly. In the Summer of 2009, the USDOL changed the process by which an LCA could be certified by requiring a human review of each Application submitted and an independent verification of the validity of the employer’s Federal Taxpayer ID number. These changes have caused delays in the processing of LCAs which now take 7 to 8 days to be certified and can take several weeks more if there is a delay in verifying the employers Taxpayer ID number.

Immigration Attorney John GalliniWhat this has meant is that H-1B cases, that previously could be filed with the USCIS within a day or two of beginning the paperwork processing, are now taking a week to two and in some cases three weeks to be filed while the employer waits for a certified LCA from the USDOL. In response, earlier this week, the USCIS announced that it would accept H-1B visa petitions without a certified LCA so long as the employer could provide evidence that the LCA had been filed with the USDOL at least 7 days prior to the date of submission to the USCIS. This will obviously help in ensuring that H-1B cases that need to be filed on an emergency basis can be filed at least within a week of the LCA filing. It also reveals an interesting interplay and possibly friction between the USCIS and the USDOL – the USDOL insists that LCAs must take longer to be certified because of the need for human review and the USCIS responds by bending the requirement of a certified LCA for an H-1B visa petition.

The ultimate friction is that if the USDOL denies the LCA after an employer rushes to file the H-1B visa petition, the employer could lose not only the H-1B but also the substantial filing fees it paid to secure that H-1B. Clearly there are a number of questions that will need to be resolved with the announcement of this new policy by the USCIS before employers can feel comfortable taking advantage of it.

For more information on this topic, please contact Donald W. Parker or John J. Gallini at 781-622-5930.

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