This is a reminder from Klasko Immigration Law Partners that the ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.
In the past several years, employers have become used to immediate turn-around of H-1B petitions, made possible by the Department of Labor’s electronic system for filing and certification of the Labor Condition Application (LCA). Every employer filing an H-1B petition with the United States Citizenship and Immigration Service (“USCIS”) must first obtain an approved LCA from the DOL. In the LCA, the employer is required to attest to paying the higher of the actual or prevailing wage, to providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, that the employer has provided appropriate notice to bargaining representatives or employees and that the employer has completed and made available a file for public examination. A DOL-approved LCA is a precondition to filing an H-1B petition with the USCIS, and as such is necessary before the employee can begin or continue work, even if the employee holds H-1B status already.
Effective June 30, 2009, the new U.S. Department of Labor (DOL) iCert system for LCAs will completely replace the previous web-based system, eliminating same-day LCA approvals in many or most cases. Instead, under the new system, DOL will use up to seven business days granted to them in the statute to certify the LCA. Early experience with the system indicates that DOL is using all seven business days or more.
In the era of iCert, advance planning is a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time (4-6 months) for the preparation and filing of H-1B extensions and amendments. This delay in filing H-1B petitions will also impact the usefulness of H-1B portability, since an individual in H-1B status will only be authorized to work for the new employer upon the filing of the new petition, and a certified LCA is required to make that filing. Under the new system, LCA delays will likely add at least a week to ten days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing, as it will delay their ability to file a new H-1B petition once they have obtained new employment.
If you have further questions on how iCert impacts your workforce please schedule a consultation or contact your Klasko Law relationship attorney for more information.