News Update - December 12, 2009

By Alan Lee, Esq.

Rules for Submitting H-1B Petition Without Certified Labor Condition Application (LCA)


With the H-1B cap quota about to run out, it has become even more important to understand U.S.C.I.S.'s rules for submitting H-1B petitions without certified LCA's.  According to information from the November 5, 2009, memorandum by Donald Neufeld, Acting Associate Director, Domestic Operations, "Temporary Acceptance of H-1B Petitions without Department of Labor (DOL) Certified Labor Condition Applications (LCA's)" and U.S.C.I.S.'s December 8, 2009 "Questions and Answers: Temporary Acceptance of H-1B Petition filed without DOL's Certified Labor Condition Applications (LCAs)", H-1B petitions can be submitted without LCA's if seven days elapse since the LCA application was submitted to the Department of Labor.  The temporary policy is in in effect from  November 5, 2009, through March 9, 2010.  The ultimately approved LCA must be the same that was pending and submitted with the H-1B petition.  (The agency will accept for filing purposes a copy of DOL's e-mail giving notice of receipt of the LCA.)  U.S.C.I.S. will only accept in lieu of such an LCA that was approved prior to the submission of the H-1B petition.  No exception seems to be given for cases in which DOL mistakenly denies the LCA and it appears that the only solution other than having another approved LCA in hand is that a new LCA must be submitted and seven days pass prior to the submission of the H-1B petition.


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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