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12/9/2009 IMMIGRATION ALERT:
The Department of Homeland Security has announced that as of December 8th, 2009, the USCIS has received 61,500 H-1b cases towards the 65,000 annual cap for Fiscal Year 2010. This latest release shows a significant increase in H-1b’s during the last month: a 400 increase since December 4th, a 2,600 increase since November 27th, a 4,600 increase since November 20th, and a 5,900 increase since November 13th. At this rate, the H-1b cap could be reached at anytime. As such, we urge employers to contact a Hammond Law Group attorney immediately regarding any new H-1b petitions subject to the cap.
By law, the USCIS cannot issue an H-1b approval without a certified Labor Condition Application from the Department of Labor. Under the new icert LCA portal of the Department of Labor, it is currently taking more than seven days to get an LCA on most cases. Previously USCIS would not even accept an H-1b petition for filing without a certified LCA. However, in November, USCIS announced a temporary reprieve to allow companies to file an H-1b with a "filed" LCA and then submit the "certified" LCA when a Request for Evidence is issued.
This allows an employer to get a petition filed and counted toward the cap, although the petition can’t be "approved" until the certified LCA is submitted to USCIS. But USCIS has said this temporary reprieve applies "only if" the H-1b petition is submitted with proof that the LCA has been pending for at least 7 days (to allow Department of Labor to process the LCA within its estimated processing time). Therefore, filing a petition before the LCA petition has been pending for 7 days could subject the petition to rejection in the mailroom and thereby not being counted toward the H-1b cap.
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