For most Lawyers handing H1B cases, the problem with the Labor Condition Application (LCA) system has become a nightmare. Some cases take almost 14 days to be resolved and the FEIN denials are completely unreasonable.
Finally, the USCIS Ombudsman release a set of recommendations to handle the recent problems.
In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to
problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.
To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:
(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
(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
Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted. We welcome the above referenced guidance, and hope this will assist many H1B filers that are in need of faster processing.