Labor Condition Applications Must Be Filed Using iCERT Beginning June 30, 2009

Beginning June 30, 2009, all labor condition applications (LCAs) must be filed through the new Department of Labor (DOL) portal, commonly known as iCERT. An LCA is required for all H-1B, H-1B1, and E-3 petitions. The electronic LCA, Form ETA-9035E, has also been revised. It is important to note that, unlike the current online process, the iCERT portal does not provide instant certification of the LCA. Based on current processing times, certification may take more than seven days.

Although DOL launched the iCERT portal on April 15, 2009, DOL has continued to accept LCA filings through the legacy LCA system and will continue to accept them until June 29. Attorneys and employers using the system have reported extensive problems and lengthy processing times. DOL has already delayed the start date once as a result. The iCERT online portal can be found at http://icert.doleta.gov/.

How This Affects You

Employers should be prepared for a potential delay in filing petitions that require a certified LCA. Any delays would likely have the greatest impact on “transfer” H-1B petitions based on AC-21 portability. In the past, the United States Citizenship and Immigration Service (USCIS) has allowed such petitions to be filed with proof of submission of the LCA to DOL. To date, we have not received any information as to whether or not USCIS will allow this again.

We will continue to monitor the situation and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
Lance Nagel
415.442.1345
lnagel@morganlewis.com

A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

Eric Bord
202.739.6040
ebord@morganlewis.com