News Update - October 31, 2009
By Alan Lee, Esq.†‡
Ombudsman Recommends that Filed Labor Condition Applications (LCA’s) be Accepted for H-1B Filings
LCA processing delays and improper denials have been the bane of many employers and employees in their quest for an H-1B visa. In the recent past, implementation of the new iCERT program by the Department of Labor has caused undue delay and rejections. USCIS requires an approved LCA prior to filing the H-1B package with the agency. Not having a certified LCA could completely derail chances at an H-1B in a time-sensitive case. Under the Ombudsman’s recommended policy of October 23, 2009, USCIS will:
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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 LAC; and
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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.
It seems likely that the USCIS will make a permanent policy change concerning this issue in the future, as per its communication with the American Council on International Personnel.
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