Avoiding Delays with LCA Business Verification

AILA's Department of Labor (DOL) Liason Committee provided suggestions for avoiding delays when seeking certification of the ETA Form 9035, or the Labor Condition Application (LCA).

What is the LCA?

The Labor Condition Application is the form that is the first step in preparing an H-1B, H-1B1, or E-3 petition. The LCA must be filed with and certified by the Department of Labor Office of Foreign Labor Certification (OFCL) regardless of whether an employer is filing a petition with USCIS or with the U.S. Consulate. The application must include four main attestations for the employer, including that the individual will be paid at or above the prevailing wage for the position and that employment records will be maintained. The period of employment in this form must cover the requested period of employment in the I-129, but does not need to match with the I-129 start date of employment. The employer must file the LCA no more than 180 days from the employment start date.

How to Avoid Delays

Normal processing time for an LCA is seven business days, not including the time it takes for the Department of Labor to verify the employer's existence. To avoid delays, especially during H-1B cap season, employers should submit to DOL evidence of their existence and their Federal Employer Identification Number (FEIN). Email is the fastest method and DOL prefers it to other methods such as fax or U.S. mail.

How to Verify the FEIN

Evidence can include any government-issued document which contains the employer's business name and FEIN. Employers must submit at least one of the below documents listed by DOL to OFLC to verify the employer:

• Documentation from IRS noting assignment of FEIN
• Federal or State tax return
• Pre-printed tax coupon
• Documentation from employer's financial institution showing employer's FEIN
• Articles of incorporation, business license, or other certifications of business existence
• Secretary of State or Corporation Commission registration documents
• Documentation showing the FEIN and name of the employers

In the past, the OFLC has accepted some other documents including other documentation issued by the IRS which labels the FEIN. Contact DOL with questions about what may be accepted as evidence of the employer's existence.

The Department of Labor takes approximately three or four days to verify the FEIN. Then, an employer will receive an email confirming FEIN verification or a request for further information to prove the existence of the employer. Employers must reply to this email promptly, within seven days. Each employer must be verified once, but if the employer's FEIN changes, employers must seek reverification.

For More Information:

Visit the Department of Labor Office of Foreign Labor Certification webpage here.

This blog post does not serve as legal advice and does not establish any client-attorney privilege. If you have any questions, please do not hesitate to contact our legal team directly.

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This information comes from a news release from the American Immigration Lawyers Association (AILA Doc. No. 17022236)