United States

A temporary U.S. Citizenship and Immigration Services (USCIS) policy that allows employers to file H-1B petitions without certified labor condition applications (LCAs) in limited circumstances will expire on March 4, 2010. Unless the policy is extended by the agency, employers with long-pending LCAs will need to wait for certification by the Department of Labor (DOL) before submitting H-1B petitions.

To address lengthy LCA processing times at DOL, USCIS announced late last year that it will temporarily accept an H-1B petition without a certified LCA if the LCA has been pending unresolved for at least seven calendar days. The policy has proven to be of very limited use to employers. It does not cover situations in which an LCA was denied and resubmitted – the most common source of LCA delays – unless the resubmitted LCA has been pending for seven calendar days or more. And if a long-pending LCA is ultimately denied, the H-1B petition would be denied and would need to be refiled once a certified LCA is eventually obtained.

USCIS has not yet announced whether the policy will be extended. Though LCA delays were expected to be addressed by March 4, they are still common, with DOL currently taking seven business days or more to process an LCA. Therefore, employers need to plan the timing of their H-1B cases carefully and submit LCAs for certification well in advance of an anticipated H-1B filing date.

Fragomen is closely monitoring LCA processing and the status of USCIS’s temporary policy. We will issue further Client Alerts as developments occur. If you have any questions about this Client Alert, please contact your designated Fragomen professional.