H-1b filing tips from AILA

Getting the LCA In Hand Before April 1 (Updated 03/03/10)

Cite as "AILA InfoNet Doc. No. 07030978 (posted Mar. 3, 2010)"

Because you cannot submit an LCA earlier than six months prior to the beginning date of the period of intended employment (20 CFR § 655.730(b)), if you want your LCA in hand before April 1, then set your employment start date on the LCA for a date in September, and set the expiration date for a date no more than three years hence. File the I-129 with a start date of October 1, but with an expiration date that coincides with the expiration date of the LCA. You will lose a couple of days on the back end of the petition by doing this, but you will get the LCA filed and back before April 1.

Example:

LCA start date: 9/1/10

LCA end date: 8/31/13

Form I-129 start date: 10/1/10

Form I-129 end date: 8/31/13

Due to delays in receiving approved LCAs, take the proper precautions and file your LCA early to avoid any undue delays, which could prove to be detrimental to your client.

Although under certain circumstances USCIS has agreed to accept H-1B petitions for processing that include LCAs that have not been certified, attorneys should understand that if the LCA submitted with the H-1B petition is eventually denied, the H-1B will be denied, even if a subsequent certified LCA is submitted. This is even true where the denial is due to DOL error in not being able to verify a petitioner's FEIN. However, USCIS has also indicated that if the sole reason for failing to apply for an Extension of Status or Change of Status is due to DOL delay in the certification process, USCIS may look at the totality of the circumstances in determining whether to accept the late filing.

Please note that the “fix” offered by USCIS for the LCA issue is set to expire on March 9, 2010. AILA Liaison has not been informed as to any possible extension of this deadline. Keep watching AILA InfoNet for the most up to date information on this issue. (AILA InfoNet Doc. No. 09120968)