The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis ended on July 1, 2009.

In the past several years, employers have become used to immediate turnaround of H-1B petitions, made possible by the Department of Labor’s (DOL) electronic system for filing and certification of the required Labor Condition Application (LCA). Effective June 30, 2009, the new iCert system for LCAs eliminated same-day LCA approvals in many cases. Instead, the DOL may take up to seven business days to certify the LCA. Early experience with the system indicates that DOL is using all seven business days or more.

In the era of iCert, advance planning is necessary. Employers should monitor the expiration dates of H-1B employees and allow sufficient time (4-6 months) for the preparation and filing of H-1B extensions and amendments.

This delay in filing H-1B petitions will also affect the usefulness of H-1B portability, because an individual in H-1B status will only be authorized to work for the new employer upon the filing of the new petition, and a certified LCA is required to make that filing. Under the new system, LCA delays will likely add at least a week to 10 days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing, because it will delay their ability to file a new H-1B petition once they have obtained new employment.