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H-1B Cap Filing Tip // Predating the LCA

March 18th, 2008 2 comments

The H-1B Cap opens April 1st and this post is a last minute reminder about predating the Labor Condition Application (“LCA”) for the H-1B petition.

More experienced immigration lawyers and most savvy employers are familiar enough with LCA predating. The American Immigration Lawyers Association (“AILA”) recently published some H-1B filing tips (member access only), and LCA predating was included. But I am going to write a longer summary here because it might be useful to immigration lawyers, employers with H-1B filings, or the prospective H-1B employees themselves.

What is the LCA?

For every H-1B petition, the employer, most times through its attorney, files a labor condition application or “LCA” with the Department of Labor, to certify that the offered wage is appropriate for the position, i.e. the employer is not offering the job to a foreign worker at a lower wage than US workers are paid for comparable jobs in that area.

The filing and approval of the LCA is a requirement that must be met before filing the H-1B petition with USCIS. Through the LCA, sponsoring employers agree to several undertakings, enforceable by heavy civil and criminal penalties: Specifically, the employer agrees:

  • To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
  • That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
  • That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
  • That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
  • To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

LCA Timing Issues

The LCA cannot be submitted to the Department of Labor earlier than six months prior to the start date of the period of intended employment (see 20 CFR ยง 655.730(b)). For most H-1B petitions being filed April 1st, the intended start-date will be October 1, 2008 – the first day of Fiscal Year 2009. So the earliest an LCA could be filed would be April 1st (6 months prior to start-date of October 1st ). But the LCA must be filed before April 1st because a certified LCA (or copy) must be included with the actual H-1B petition, and the H-1B petition should be received by April 1st in order to beat the Cap.

In an ideal world, an H-1B petition would be filed with a start date of October 1, 2008, and an end-date of September 30, 2011. These dates reflect the three-year maximum validity for each approved H-1B petition. And the LCA must cover the full three years.

This is not possible, though, because of timing issues with the H-1B cap. As covered above, the H-1B petition must be received by USCIS, with a certified LCA, on April 1st. Yet the LCA cannot be filed before April 1st if it is to cover the full three years of the H-1B petition from October 1, 2008 through September 30, 2011. It’s a real catch-22.

So, what to do?

The solution is to predate the LCA with a start date earlier than October 1, 2008, and then file the H-1B petition (Form I-129) with a start date of October 1, 2008, but with an expiration date that matches up with the end date of the LCA. For example, if we were to file an LCA today, we could set the start date of LCA for September 18, 2008 and an end date of September 17, 2011. Then we could file the H-1B petition April 1st and request a start date of October 1, 2008, and an expiration date of September 17, 2011 (to match the LCA end-date).

The only drawback to this method is that the H-1B petition will be approved for less than the three-year maximum. But it is worth sacrificing a week, or even a month, of eligibility to make it possible for the petition to be accepted under the Cap.

If USCIS publishes any more H-1B Cap filing tips, I will add them to this post so check back soon.

Feel free to drop any comments or questions below.

Categories: H-1B FY2008 Tags: ,