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H-1B Panic: Beware the iCert and Prevailing Wage Request

On April 1st, employers and immigration attorneys alike will again be the subject of the biggest reoccurring  April Fool’s joke( which truly is no laughing…

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On April 1st, employers and immigration attorneys alike will again be the subject of the biggest reoccurring  April Fool’s joke( which truly is no laughing matter): The ability to “capture” one of the very limited 85,000 cap subject H-1B visas( 20,000 of which are reserved for professionals with U.S. Masters’ degrees) for the period beginning October 1, 2010.

Remember: H-1Bs are allocated based upon the USCIS fiscal calendar, which runs from October 1st until September 30th. H-1B petitions may be filed 180 days before the start of the fiscal year, meaning that to obtain an H-1B for a start date of October 1st that petition must go into the Federal Express box by the night of March 31st, to arrive at the USCIS ( and there are special mailbox addresses and instructions for these filings) on the morning of April 1st. This year as employers and immigration attorneys scamper about attempting to accommodate last minute requests by foreign nationals requesting that they be included in this mad filing rush, there are couple of new twists that must be considered.

First, the H-1B process this year is much more difficult than in previous years due to DOL’s institution of a new form called the iCert. To recap, all H-1B petitions must be properly filed with the actual  H-1B forms signed by the employer, accompanied by a  detailed description of the job duties of the position establishing that a four year degree is unequivocally required in the industry in order to carry out such job duties, proof that the foreign national satisfies the requirements of the position ( in the form of that individual’s educational and/or experience diplomas and certificates, including a foreign credentials evaluation if the educational diploma being relied upon was not granted by a U.S. educational institution),  and, of course, the requisite filing fee. In addition and certainly not to be forgotten is the “labor condition application”, now called “iCert”, which must first be approved by the U.S. DOL. If the iCert form is not included at the time of the filing, the H-1B petition will be denied.

 Back in the good old days—and that was less than a year ago—this was a much easier process. Attorneys assisted clients to determine what DOL felt should be the “prevailing wage”—the wage paid for that position in the geographic area. For Pennsylvania cases, this was an easy feat to accomplish: the local DOL office, called the SWA, responded quickly. With that DOL wage determination in hand, attorneys filed the on line LCA form and within seconds received a certified form back, which was then signed by the H-1B employer and included in the H-1B filing.

Change is not always a good thing, especially when the U.S. government is in charge. The DOL, in its infinite wisdom, decided that all prevailing wage requests should go to a central location in D.C. to achieve consistency. While certainly consistency has been achieved, prevailing wages are as slow as molasses, sometimes taking 6 weeks to receive. Only once the prevailing wage is received can the Employer then post the notice of the job opening and the attorney file the iCert with the DOL.

To add further stress to the timing of this process, iCerts are now taking sometimes two weeks and more to obtain from the DOL. Recall, without a certified iCert the H-1B petition cannot be filed. Why such a long period?  Volume, the “hands-on” requirement of the new iCert and something even more aggravating: the lack of “porting” of all the old employer information from the old labor condition computer system to the new iCert system. Consequently, it is not unusual for an attorney or company to file an iCert form with the DOL for even a Fortune 500 company and then have the iCert come back denied because, according to the DOL database, that company does not yet “exist”.

Frustrating though this new system is, the legal and employment communities are both stuck with it and must plan accordingly. For those employers and attorneys whose H-1B packets will not be making this H-1B April 1st filing, there’s still hope: due to the economy last year (for the first time in three years), H-1Bs numbers were not fully gobbled up until the summer!

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