USCIS Q&A on H-1B Petitions Filed Without Certified LCAs

In a Q&A dated December 8, 2009, on its website, U.S. Citizenship and Immigration Services (USCIS) announced that it has extended the filing period of H-1B petitions without Labor Condition Applications (LCAs) that have been certified by the U.S. Department of Labor (DOL).  The effective dates are Nov. 5, 2009 through Mar. 9, 2010.  At this time, USCIS is only providing temporary relief to deal with the Department of Labor’s (DOL) problems with its iCERT System. 

What is most troubling about its guidance is that it has stated that it will not accept H-1B petitions filed without a certified LCA where the DOL denied the original LCA because it could not find the employer’s valid Federal Employer Identification Number (FEIN).  In the case of an FEIN denial, after the employer files its initial LCA, the DOL sends an e-mail to the employer stating that the LCA was denied because DOL could not verify the employer’s FEIN.  Then, the DOL asks the employer to submit evidence that the FEIN is valid.  After it validates the FEIN, which can take one week, the employer must refile the LCA and wait seven more days for a certification.
USCIS is now stating that it will not accept H-1B petitions where the DOL denied the first LCA because of lack of FEIN verification, even when the original LCA was filed more than seven days prior to the filing of the H-1B petition (the guidance states that the LCA must have been filed at least seven days prior to filing the H-1B petition without the certified LCA).  Instead, the employer must wait for FEIN verification, refile the LCA and wait seven more days before filing the H-1B petition. 
This is outrageously unfair in light of the employer’s lack of culpability and the impending attainment of the H-1B cap.  If employers do not file their H-1B petitions soon, their petitions will be rejected and they will have to wait until April 2010 to refile for a start date of October 2010.  USCIS should accept H-1B petitions without a certified LCA where the employer can document that it filed the first LCA more than seven days before the filing of the H-1B petition and that LCA was denied because of the DOL’s faulty iCERT system and inability to verify the employer’s valid FEIN.
USCIS does state that it “will review the totality of the circumstances to determine whether it can exercise discretion and excuse the late filing if the petitioner submits evidence to establish that the reason for the failure to timely file an extension of stay or change of status H-1B petition was due to the erroneous denial of an LCA.”  This does not help petitioners whose H-1B petitions are subject to the H-1B cap.