AILA Liaison On H-1B, LCA and PWD

On Friday, March 5, 2010, AILA liaison asked USCIS to extend the "temporary acceptance" period for submitting H-1B petitions without a certified LCA due to reports of ongoing LCA processing issues at DOL, compounded by extensive delays in Prevailing Wage Determination (PWD) processing. Additionally, AILA once again pointed out that the requirement that the LCA tracking numbers match undermine the effectiveness of the USCIS temporary accommodation, and AILA asked USCIS to review the LCA receipt match requirement, particularly for those cases denied or rejected during the "temporary acceptance" period. Yesterday, USCIS declined AILA's request for an extension, stating that DOL informed USCIS that DOL was processing LCA applications within 4-5 days of receipt.

AILA reminds members that under DOL regulations at 20 CFR § 655.731(a)(2), an employer is not required to obtain a PWD for an H-1B and may rely on an independent authoritative wage source or other legitimate sources of wage data when filing an LCA. The independent authoritative source survey must meet all the criteria set forth in paragraph 20 CFR § 655.731(b)(3).

USCIS continues to look at the LCA receipt "no-match" issue for cases filed during the "temporary acceptance" period. USCIS has asked AILA for examples of H-1B petition denials or rejections due to LCA receipt "no-match," where a correct LCA was filed (and denied by the DOL), the H-1B petition was submitted seven days after the initial LCA was submitted, a subsequent identical LCA was filed with the DOL and approved, and that LCA was provided to the USCIS in response to an RFE requesting a certified LCA. Please send to reports@aila.org with the subject: LCA no-match. Please scan and attach the following: a copy of the original, denied LCA with the LCA tracking number, the subsequent, certified LCA, which must be identical to the one that was denied, the H-1B petition denial, or, if rejected, a copy of the rejection notice.