INS to Allow H-1B Filings Without Certified LCAs--For Now
March 21, 2001
Bill Yates, the INS Deputy Executive Associate Commissioner for the Immigration Services Division, has advised that INS will, at least for the time being, continue its long-standing practice of accepting H-1B petitions filed with only a copy of the labor condition application and proof of its filing with the Department of Labor.
Also as is the current practice, INS will send a request for evidence to obtain the certified LCA before it completes processing of the petition.
Mr. Yates agreed that, because such petitions would continue to be considered properly filed, beneficiaries of change of employer petitions may take advantage of the AC21 section 105 portability provision upon the filing of a petition in this situation. He acknowledged that the Department of Labor regulation suggests that a certified LCA would be necessary for portability, but noted that the issue is under INS', not DOL's, jurisdiction.
Mr. Yates did indicate that the policy of accepting H-1B petitions without certified LCAs is under review at INS and could be changed in the future, but that such change would not take place without a notice in the Federal Register and, if it occurs, would be prospective only.
