Beginning on May 15, 2009, all employer sponsors must use the Department of Labor’s (DOL) new iCERT system to file Labor Condition Applications (LCA) before submitting an H-1B, E-3, or H-1B1 petition. The DOL anticipates that LCA applications filed at the iCERT portal could take as long as seven business days to adjudicate. Employer sponsors should therefore expect delays in the preparation of H-1B, E-3, and H-1B1 petitions and a corresponding delay in the start date for new H-1B, E-3, or H-1B1 hires. The most critical impact will be felt with respect to H-1B “portable” change-of-employer situations as the LCA delay will prevent immediate filing of the H-1B petition and thus the new H-1B employee’s start date. Timing issues may also arise with respect to scheduling visa appointments for consular-processed E-3 and H-1B1 visa applications. Delays will also affect employers hurrying to file H-1B petitions subject to the 2010 cap, as the number of available H-1B slots dwindles to less than 18,000. The new system may also delay the filing of extensions for employees in these visa categories.
The LCA is a critical component of the H-1B, E-3, and H-1B1 application process. The LCA must be certified by the DOL before the H-1B, E-3, or H-1B1 petition is filed with the United States Citizenship and Immigration Services (USCIS) or U.S. Consulate. The DOL will not certify an LCA until it has confirmed that the petitioner’s wage offer is at or above the prevailing wage for the region. The DOL is required by regulation to adjudicate a properly submitted LCA within seven business days.
The new LCA system has been available for use on an interim basis since April 15, 2009. Ogletree Deakins has filed several LCA applications through the new DOL portal. The new DOL system has been error-prone and has frequently malfunctioned, resulting in additional delays. When the DOL system has worked properly, the DOL has taken the full seven-day statutory adjudication period for most LCAs. The current DOL system, which will no longer be active after May 14, 2009, provides near-instantaneous approvals for LCA filings. Employers should expect that DOL processing delays will continue. DOL delays are likely to add an additional week, or perhaps longer, to the pre-filing period for these petitions once the new system becomes mandatory on May 15.