U.S. employers across the nation are facing delays in obtaining labor condition application (LCA) approvals through the Department of Labor's new iCert program. This sometimes results in adverse consequences for employers because a certified LCA is required for filing an H-1B petition for a nonimmigrant worker. The DOL has been denying LCAs when it is unable to verify the employer's Federal Employer Identification Number (FEIN) through iCert. This often occurs even when the employer or attorney has entered the FEIN correctly on the LCA.

iCert went into effect on June 30, 2009, replacing the prior web-based system. Same-day LCA approvals are no longer available under the new system.  The DOL initially expected that it could take up to seven business days to certify LCAs, but technical glitches in the iCert system have resulted in delays beyond seven days. One reason for these glitches is that employer data from the prior LCA system did not transfer to the new iCert system. Because  iCert is not integrated with the prior LCA system or the IRS database, the DOL might not be able to verify the FEIN.

 

Upon receipt of an LCA denial notice due to the DOL's inability to verify the FEIN, employers are instructed to send the DOL proof of the FEIN number to a specified email address, fax number or mailing address. Acceptable proof of the FEIN include IRS documentation assigning the FEIN, preprinted tax coupons or tax returns with a preprinted label listing the FEIN, bank documents listing the FEIN, and any other government documents indicating the FEIN. After the employer submits the documentation, the DOL will issue an FEIN resolution notice. This does not result in an LCA approval. Instead, the employer must resubmit the LCA through the iCert system. This resubmission is, once again, subject to an average processing time of seven days.  

To resolve these issues, the DOL has begun integrating iCert with the PERM (labor certification) database. This will facilitiate the transference of FEINs submitted by employers in support of PERM applications to the iCert system, thereby reducing the number of FEIN non-confirmations. This alone will not fully resolve the FEIN issue. Therefore, employers are encouraged to file their H-1B petitions and extensions as soon as possible to avoid delays and potential breaks in foreign national employees' work authorization. H-1B extensions may be filed as early as six months in advance of the requested start date. Employers should also locate acceptable tax documents that verify the company's FEIN and have them ready for submission to the DOL if and when they are requested.