As we predicted in our blog post announcing the implementation of a new Labor Condition Application (LCA) online system known as iCert by the Department of Labor (DOL) there have been numerous delays in obtaining certification of LCAs. This has had a tremendous impact on employers, as they are required to obtain a certified LCA as a precondition to filing an H-1B nonimmigrant worker petition with the United States Citizenship and Immigration Service (USCIS).

The iCert system became effective on June 30, 2009, replacing the previous web-based system. While it was known that iCert would eliminate same day LCA approvals, the DOL originally anticipated that it could take up to seven business days to certify the LCA. However, since its implementation the iCert system has experienced a number of technical glitches that have resulted in delays in obtaining certified LCAs beyond the seven day period.

Part of the reason for these glitches is that employer data from the old LCA system did not transfer to the new iCert system. As a result, the most prevalent problem of the new system is the denial of LCAs when the DOL cannot verify the employer’s Federal Employment Identification Number (FEIN). This occurs even on LCAs filed by employers who regularly submitted applications on the old system with no issues. Moreover, these denials occur even when the correct FEIN was entered on the LCA. Because the iCert database is not integrated with the IRS database or the old LCA system, there is no way for the DOL to verify the FEIN.

Upon the receipt of an LCA denial notification from the DOL employers are instructed to provide the DOL with proof of the FEIN number through a specified email address. Acceptable proof of the FEIN can include IRS documentation assigning the FEIN, preprinted tax coupons or tax returns with a preprinted label listing the FEIN, bank documents listing the FEIN, and any other government documents indicating the FEIN. Once the employer locates this documentation and sends it to the DOL it is taking up to ten additional business days to resolve the FEIN problem.

The FEIN resolution does not result in an LCA approval. Once the employer receives confirmation from the DOL that the FEIN issue has been resolved they can then resubmit the LCA through the iCert system. This resubmission is, once again, subject to the seven day processing time.

The DOL is attempting to resolve these issues. They have recently issued guidance to employers noting that they are integrating iCert with the PERM database. It is hoped that the FEINs submitted by employers in connection with PERM applications will be transferred to the iCert system, thereby reducing the number of FEIN non-confirmations. However, until the issues are fully resolved these delays can have very serious implications for employers and employees alike. Employers are urged to locate acceptable tax documents that verify your company’s FEIN and have them available if and when they are requested by the DOL. Another effective way of avoiding delays is to implement a tickler system to identify expiring H-1Bs within the company’s workforce. As H-1B extensions can be filed as much as six months in advance of the requested start date, employers can avoid last minute delays and possible breaks in the employee’s work authorized status by identifying the applications that need to be filed in advance.