John Valdez’s Legal Blog

On October 23, 2009, the USCIS announced that, in certain circumstances, it would allow H-1B sponsors to file H-1B petitions without an approved Labor Condition Application (”LCA”).  In particular, in the notice the USCIS adopts the Ombudsman’s recommendations to allow the following:

(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.

The cause of this change in policy can be traced to deficiencies in the Department of Labor’s new LCA technology.  The new program is meant to make the process of obtaining an LCA more efficient, but as with many other releases of new technology, the progress comes with defects.  There have been numerous delays and improper denials of LCAs because of program defects.  In addition, I have noticed that the language implemented in the new application is convoluted and difficult to understand, which makes it harder for most people to use. 

The USCIS has made a very reasonable accomodation to employers facing difficulties with the LCA.  Still, the government will not approve the H-1B petition until the sponsor obtains an approved LCA.  Thus, it is critical that the DOL improve its new system as soon as possible.

 If you are facing an H-1B problem, or simply want to start the process, you may contact our Long Beach immigration attorney.