Questions and Answers: Temporary Acceptance of H-1B Petition Filed without DOL's Certified Labor Condition Applications (LCAs)
U.S. Citizenship and Immigration Services extends the filing period of H-1B petitions without Labor Condition Applications (LCAs) that have been certified by the U.S. Department of Labor (DOL). The effective dates are Nov. 5, 2009 through Mar. 9, 2010, which provides the public with the benefit of the full 120 day accommodation measure since the posting of the USCIS Update dated Nov. 10, 2009. At this time, USCIS is only providing this temporary measure to address problems related to the Department of Labor’s (DOL) iCERT System. USCIS will continue to monitor the situation.
Questions & Answers
Q: What is the effective period for the temporary acceptance of H-1B petitions filed without a certified LCA?
Q: Will USCIS also accept H-1B petitions in cases where DOL has denied an LCA based on Federal Employer Identification Number (FEIN) “no match” grounds, or other erroneous grounds, and the employer has filed a subsequent LCA with DOL that has been pending for less than seven days if the original LCA was filed more than seven calendar days ago?
Q: In the case of an H-1B petition filed for an extension of stay, will USCIS accept a certified LCA in response to a Request for Evidence (RFE) where the date of certification may be subsequent to the date the H-1B petition was filed with USCIS? If there is a gap between the starting date requested on the H-1B petition and the starting date authorized on the certified LCA, will USCIS issue an I-94 showing continuous authorized stay and extension of stay?
A: USCIS will not deny an H-1B petition filed during this temporary extension on the basis that the LCA originally filed with petition was certified after the petition was filed, as long as the case is found to be otherwise eligible. In the example above, USCIS will exercise discretion based on the totality of circumstances to determine whether to issue a Form I-94 showing continuous authorized stay and extension of stay.
Q: If a petitioner takes advantage of the temporary acceptance procedures, but the LCA originally filed with the petition is subsequently denied by DOL, can the petitioner submit a new, certified LCA in response to the USCIS RFE?
Q: Which petitions are eligible under this temporary acceptance procedure?
Q: How will petitions that were previously denied based on the failure to have a certified LCA be affected by this announcement? Will USCIS review H-1B extension of stay and change of status petitions previously denied, which may be the subject of pending Motions to Reopen/Reconsider (MTRs), based on this new policy?
Q: In general, how far in advance can a petition be filed for the H-1B classification, including an extension of stay?
For more information on USCIS and its programs, visit www.uscis.gov or call 1-800-375-5283