New DOL LCA System Compromises Ability to Hire H-1B Workers Quickly

Under current Department of Labor (DOL) procedures, an employer seeking to hire an H-1B worker from another company can do so quickly—in a matter of one or two days—by filing an H-1B petition request that includes a Labor Condition Application (LCA) certified by the DOL. Effective May 15, 2009, the DOL LCA system will change such that the LCA will no longer be certified within seconds but instead may take seven or more days to be issued. Employers will thus no longer have the option of near-immediate employment eligibility for H-1B employees hired from other companies.

New Portal for Online Completion and Filing

Beginning on April 15, 2009, employers may start using a new portal for online completion and filing of the LCA with the DOL. The new portal is called "iCert." Use of the iCert portal will require completion of a new version of the LCA form (ETA Form 9035). Employers will have one month to transition to the new portal and the new ETA Form 9035; the new LCA form and system must be used by employers beginning on May 15, 2009. At that time, the DOL plans to close the current system.

By way of background, employers seeking to sponsor a prospective employee for H-1B visa classification are required to file, in advance, an LCA with the DOL. The LCA requires the employer to make a number of attestations regarding wages and working conditions. The H-1B filing must include an LCA that has been certified by the DOL.

Critical Changes Affecting Employers

The new form will require more information about the employer and the intended employment than is required by the current LCA form. In addition, and more importantly, the DOL anticipates that it will take up to seven (7) days—and in some instances longer—to obtain an LCA certification. (Under the current system, LCA certification typically occurs instantaneously.) A certified LCA is a prerequisite to filing an H-1B, H-1B1, or E-3 nonimmigrant visa petition with the USCIS.

As a result, an employer must plan ahead when seeking to hire a worker in the H-1B, H-1B1, or E-3 visa categories. Advance planning is even more critical if the employer intends to invoke H-1B portability, which allows an H-1B nonimmigrant to begin employment with a new H-1B sponsoring employer upon the filing of an H-1B change of employer petition.

For additional information, please contact the Seyfarth attorney with whom you work or any attorney in our Business Immigration Group.