Law Office of Vivian Wang - Recent Immigrant News

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Temporary acceptance of filed LCA for H1B filing

Feb 05, 2010

In a memorandum dated 1/28/2010, USCIS clarifies its practice of temporarily accepting an H1B petition without an approved LCA.

On November 5, 2009, USCIS announced that for a 120-day period it would temporarily accept H1B petitions filed without LCAs that have been certified by DOL. However, USCIS will only accept such H1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these LCA filings. The only acceptable evidence of filing is a copy of DOL's email giving notice of receipt of the LCA. Petitioners who seeks to take advantage of this temporary flexibility in the normal filing procedures must wait until they receive an RFE before they can submit the DOL-certified LCA to USCIS in support of the H1B petition. The certified LCA must be the same LCA filed with the original petition, unless the petitioner provides an LCA that was certified prior to the submission of the H1B petition. USCIS will give petitioners a period of 30 calendar days to submit a DOL-certified LCA in response to the RFE. USCIS can only approve H1B petitions that include certified LCAs.

Also, USCIS will continue to excuse late filing, per 8 CFR214.1(c)(4) or 8 CFR 248.1(b). The late filing will be considered in instances whereby the delay in filing the petition requesting an extension of H1B stay or change of nonimmigrant status to H1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to FEIN check issues. Applicants who would like USCIS to consider a late filing should submit evidence indicating that the filing was delayed through no fault of the petitioner or beneficiary along with the H1B petition.

DISCLAIMER: Information contained on this site is intended to educate the general public only and does not constitute legal advice. Readers are encouraged to seek advice and counsel from a law firm with experience in immigration and nationality law.