iCERT LCA Processing Delays

HIGHER USDOL SCRUTINY CAUSES MORE DELAYS AND DENIALS IN H-1B PROCESSING

Due to recent changes in the immigration law, the process of securing an H-1B visa has become more complicated as the US Department of Labor (USDOL) is examining applications with a higher level of scrutiny. Our immigration lawyers at the Law Firm of Shihab & Associates, Co., LPA have extensive experience in this area, and we can competently represent your interests and avoid pitfalls that can negatively affect your case. Contact us for a consultation.

The employer who commits an LCA violation can be fined, debarred, and further investigated

In order to get an H-1B visa for a prospective employee, the employer must first obtain an approved Labor Condition Application (LCA). The LCA process is intended to make sure that (1) the H-1B employer will pay the worker a wage not less than the actual or prevailing wage, (2) the presence of H-1B workers not adversely affect the working conditions of U.S. workers, (3) there is not a strike or lockout at the employer’s workplace, (4) and there has been appropriate notification to affected U.S. workers via postings or communication with appropriate labor union. The employer who commits an LCA violation can be subject to fines, debarment, and further investigations.

The USDOL no longer allows rapid online LCA approval, so timing may be critical

Two of the most significant changes in the LCA process are the new iCert3 system and closer scrutiny by the USDOL, which have both resulted in system delays and denials of LCA applications. In the late 1990’s, online filing was introduced and LCA approvals were virtually instantaneous. However, that changed in the summer of 2008 when the USDOL announced that due to abuses of the system, it would subject LCAs to closer review, and it would no longer grant rapid online certifications. Also, in April 2009, iCert was put into production on the USDOL’s new online electronic portal. Such delays can be disastrous if the H-1B petition is time-sensitive due to a validity period that is about to expire or the H-1B cap is about to be reached.

Delays for companies that are small, changed names, or changed locations

In its attempt to prevent perceived fraud, the USDOL is looking more closely at the Federal Employer Identification Number (FEIN) to make sure it can be verified. This may result in an LCA denial for a company that is small, changed names, changed locations, or for some other reason has an unverifiable FEIN under the new iCert database system. Our attorneys are aware of this issue, and we will anticipate difficulties in FEIN verification if you had a corporate name change, recently issued FEIN, or other issue, we will be proactive and provide FEIN documentation to the USDOL to avoid an LCA denial.

Another reason for delay is that the USDOL will scrutinize the prevailing wage survey to determine if the methodology meets USDOL requirements. The DOL may request copies of an underlying wage survey through issuance of a Request for Information letter (RFI). This issue arises more frequently with alternative wage sources other than with one of the commonly used surveys such as Watson-Wyatt or Mercer.

How to contact us

With all the rules and regulations involved in the LCA process, it is critical to consult a knowledgeable attorney. If you have questions about an H-1B visa, immigration visa, green card matter, or any other immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, the Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.