A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, January 28, 2019

H-1B Petitioners -- Do Not Neglect the LCA!

The H-1B annual cap filing is soon to start. The H-1B nonimmigrant visa is perhaps one of the most competitive and sought after work visas in the United States. It was created to allow skilled and educated foreigners to work in the U.S. The H-1B visa program was designed for positions that qualify as "specialty occupations", allowing qualified workers to work in positions requiring complex and specialized knowledge. Visa-holders can get up to 6 years of temporary employment status in the U.S.

The offered positions in H-1B specialty occupation applications are highly scrutinized. Petitioners must carefully put together evidence to prove position and worker eligibility. Yet, they must be careful not to overlook one factor: the Labor Condition Application (LCA). 

The LCA is an essential document for the H-1B petition, certified by the Department of Labor. Created to protect the working conditions of U.S. workers, the LCA captures information about the proffered position, including wage rates and levels, occupational code, and occupational category. This information must match what is presented in the H-1B application. If the LCA details do not match those on the H-1B application, the petition will be denied irregardless of other evidence. A recent decision by the Administrative Appeals Office (AAO) emphasizes the importance of the LCA.

In a decision dated January 9, 2019, the AAO held that the USCIS California Service Center did not properly adjudicate a denied H-1B petition. The petition was denied on the grounds that it did not prove that the position was a "specialty occupation". The AAO, however, disagreed not with whether specialty occupation was proven but with the LCA. They reasoned that the Service Center should have checked first and foremost whether the LCA corresponded with the petition. They found that the submitted LCA listed the job as under "Market Research Analysts and Marketing Specialists" occupational category. The AAO questioned whether it should have been under "Marketing Managers" due to the nature of the position and the wage level. 

The AAO ordered the Director's decision withdrawn and had the case remanded for further review. In the new analysis, the Director was to determine if the LCA corresponded with the petition first. If the details matched, then the Director could proceed adjudicating the rest of the petition and request additional evidence as needed. This case is just one example to illustrate that the LCA must be prepared correctly and consistently with the subject H-1B position.

No comments:

Post a Comment

Spam and advertisements are not allowed and will be removed.