This is a reminder from Klasko, Rulon, Stock & Seltzer that the days of the instant labor condition application (LCA) are over. Effective June 30, 2009, the new U.S. Department of Labor (DOL) iCert system for LCAs will completely replace the previous web-based system, eliminating same day LCA approvals. Instead, under the new system, DOL will use up to seven business days (or more) to certify the LCA, and early experience with the system indicates that DOL is taking all seven business days.
In a recent meeting of the American Immigration Lawyer’s Association (AILA), a top-level DOL official indicated that, if non-obvious errors or other problems with the LCA are detected, the decision on the LCA could extend beyond the seven days. At this meeting, Klasko Partner, Bill Stock urged the DOL to adhere to their own regulations and either deny or certify LCAs within the seven day period allotted by the regulations. However, DOL officials insisted that they could not currently provide processing times for LCAs that require further review.
What does this mean for employers? Well, this system change means that it will no longer be possible to prepare and file H-1B applications on short notice. Every employer filing an H-1B petition with the United States Citizenship and Immigration Service (“USCIS”) must first obtain an approved LCA from the DOL. In the LCA the employer is required to attest to paying the higher of the actual or prevailing wage, to providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, that the employer has provided appropriate notice to bargaining representatives or employees and that the employer has completed and made available a file for public examination. A DOL approved LCA is a precondition to filing an H-1B petition with the USCIS, and as such is integral to obtaining H-1B status for employees.
In the era of iCert, advance planning will be a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time for the preparation and filing of H-1B extensions and amendments. This delay in filing will also impact the usefulness of H-1B portability, since an individual in H-1B status can only be authorized to work for the new employer upon the filing of the new petition, which requires a certified LCA. Under the new system, certification will add at least a week to ten days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing, as it will delay their ability to file a new H-1B petition once they have obtained new employment.
Employers and employees can also expect that in the first weeks of use, there will continue to be technical glitches in the software. The delay in implementation of the iCert program reflects this fact.
If you have further questions on how iCert impacts your workforce, please schedule a consultation or contact one of the attorneys for more information.
