USCIS Director issues a Response to Recommendation 43, Temporary Acceptance of Filed Labor Condition Applications for Certain H-1B Filings

The Director of the United States Citizenship and Immigration Service (USCIS), Alejandro Mayorkas has recently issued a response to the recommendations of the Citizenship and Immigration Services Ombudsman regarding the temporary acceptance of Labor Condition Applications (LCAs) for certain H-1B filings.

Until March 9, 2010, the USCIS Service Centers will continue to accept H-1B petitions filed without certified LCAs. However, the only H-1B petitions that will be accepted are those that have been filed at least seven (7) calendar days after the LCAs were filed with the Department of Labor (DOL). The only acceptable proof of the submission of the LCA for certification with the DOL is a copy of the DOL’s email giving notice of receipt of the LCA.

Those that do take advantage of the temporary acceptance of these certain H-1B filings must wait until they receive a Request for Evidence (RFE) before submitting the certified LCA to USCIS. The LCA submitted in response to receiving an RFE must be the same LCA filed with the original petition and it must be submitted within 30 calendar days of receipt of the RFE requesting such documentation.

Additionally, Director Mayorkas has indicated that the USCIS will continue to excuse late filings whereby the delay in filing the petition was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to Federal Employer Identification Number (FEIN) check issues.

Those that would like for the USCIS to consider a late filing should be prepared to submit evidence showing that the filing delay was through no fault of their own along with the H-1B petition.