Reasons Companies should prepare early for the 2010 H1B Season – Delays Caused By iCert Glitches

By: Hasan Abdullah, Esq

April 1^st has been considered an important deadline to file H1B petitions due to what is known as the “H-1B cap.” Congress has mandated a quota on how many new H1Bs may be issued every year. It has been generally set at 65,000 visas per year with an additional 20,000 for workers with US advanced degrees. The earliest that a company can file an H1B petition for a worker is April 1^st. In previous years, the quota had been met as quickly as the first day. Anyone applying after the quote was reached would be out of luck, and have to wait another year.

Since April 1^st is an important deadline, companies seeking to bring in foreign specialty occupation H1B workers usually retain the services of immigration firms experienced in employment based petitions at least a few weeks in advance of April 1^st. In previous years, it was possible to at least prepare a bare-bones petition*, within a day, but this is no longer the case.

iCert Introduces 7-day Processing Time Burden

At the absolutely minimum, petitioners have to wait seven days. The culprit for this delay is the new Department of Labor (DOL) iCert system which was introduced on July 1, 2009. Before filing an H1B petition, a Labor Condition Application (LCA) must be approved. Before iCert was implemented, an LCA could be obtained instantaneously. Now that we must use iCert to file LCAs, we have to wait a fixed period of seven days to get a decision.

iCert can also be described as nitpicky, and you have to wait days to find out what nit it picked. For example, if you use the FLC Data Center to determine the prevailing wage, and enter anything other than “OFLC Online Data Center,” (a popular entry is OES since that was the proper entry in the previous system) you’ll potentially have to wait a few days to learn that the LCA is denied. Some experience with this system is important to avoid unnecessary delays.

iCert Federal Employer Identification Number (FEIN) Verification Glitch Delays

The required seven day wait is not the only problem associated with the iCert system. It seems that without fail, if a company has not previously submitted proof of their FEIN to the DOL’s “LCA business verification team,” then the LCA will be denied. Even well established companies in business for several years do not show up in whatever faulty database iCert uses to verify company FEINs.

Petitioners must be proactive and provide a scanned copy of proof of FEIN to the LCA business verification team to add the company’s tax ID number to their database in advance. Failure to provide advance notice could turn the 7-day process could into a 14+ day process; generally about 3-7 days to wait for the LCA denial, 2-5 days to wait for the LCA team to verify tax ID information, and another 7 days to get a fresh LCA approved.

Conclusion

While it is true that the H1B quota doesn’t always get exhausted immediately, it’s best to treat April 1^st as a deadline to file, just in case. With April 1^st as the intended deadline, companies that have not previously furnished the LCA business verification team with proof of their FEIN should to provide the proof of FEIN in advance. The entire process to obtain the LCA may take 9-12 days. For those companies which have filed LCAs on the iCert system, expect the process to take 7 days.

Gone are the days when an H1B petition could be sent out at the last minute, therefore it is recommended that employers start the process weeks in advance of April 1^st.

*a bare-bones petition is where a petitioner submits only the required forms with little supporting evidence, and anticipates that USCIS will request additional evidence.