USCIS Ombudsman Recommends Allowing H-1b Petitioners to File with a Pending LCA

Office of the USCIS Ombudsman Recommends that USCIS Allow H-1b Petition Filing on Proof of Submission of Labor Condition Application, Rather than Upon Certification - The USCIS Office of the Ombudsman has recommended that USCIS reinstate its policy permitting H-1b petitioners to file with USCIS even though the Department of Labor (DOL) has not yet certified the Labor Condition Application (LCA). Since July 2009, DOL has increased its scrutiny of LCAs and the process, which had been instantaneous in most cases, now requires up to seven business days. In light of substantial database and implementation problems, however, the new system has been plagued with erroneous denials that can add weeks to the process. DOL has acknowledged these problems, and seems to be working to fix them, but that is small comfort to the employee whose H-1b status is rapidly coming to an end and who must either have an H-1b petition on file or depart the country.

In the past, USCIS had taken these factors into account and permitted filing of the H-1b petition with proof of LCA submission, with grant conditioned on LCA approval. This policy ended when DOL went to the online certification method requiring no waiting period. Although implored by the immigration Bar and employers to revert to the earlier policy, USCIS has to date refrained from doing so. The Ombudsman’s recommendation is perhaps the strongest pressure to date. The Ombudsman is an independent office within the Department of Homeland Security that is not part of USCIS. It is supposed to field inquiries from the public and Congress and to make operation recommendations to USCIS, which the agency is not bound to implement, but often does. Most recently, USCIS substantially implemented Ombudsmen recommendations in light of lengthy delays in approving Employment Authorization Documents, which USCIS is required by federal regulation to complete in 90 days.

In its H-1b recommendations, the Ombudsman acknowledges DOL’s primary jurisdiction over LCAs, but notes that DOL’s processing problems “extend to USCIS through the agency’s requirement that petition filings include certified LCAs”. The Ombudsman states that the burden on USCIS of accepting pending but uncertified LCAs is “outweighed by the burden that incorrect denials have on employers and individuals”, and that USCIS would only have to make “minor processing modifications” to accomplish the temporary policy change. USCIS last accepted uncertified LCAs with H-1b petitions in 2001 based on a policy adopted in 1992.

There is no period within which USCIS must act or not on this recommendation, but it usually takes seriously procedural recommendations of this kind.

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