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:

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 LAC; 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.

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.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2009 Alan Lee, Esq.

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