"A Moveable Feast": New and Old Portability under AC21 § 105 (Part V)
Labor Condition Applications and I-129 Petitions
Before filing a petition for H-1B classification, the employer must "obtain a certification from the DOL that it has filed a labor condition application (LCA) in the occupational specialty in which the alien(s) will be employed."91 The DOL is required to certify an LCA within seven days of the submission of the application.92 The DOL's interim final regulations provide that an employer must submit a copy of the certified LCA to the INS with the I-129 petition, and that the employer cannot allow a nonimmigrant worker to begin employment "until the new employer files a petition supported by a certified LCA."93 Moreover, the DOL regulations specifically state that a worker who changes employers under § 105 may not begin work "until the new employer files a petition supported by a certified LCA."94
Despite the DOL's position, the new employer should be permitted to submit an I-129 petition in situations where the LCA is not certified within seven days of the filing. Indeed, former Sen. Spencer Abraham's letter to the INS stated that the DOL's position is "a clearly inappropriate interpretation of the law and, in any event, it is INS, not DOL, which is required to interpret the portability provision."95 In situations where the LCA is not certified in seven days, the employer should be allowed to file the I-129 petition and submit the certified LCA separately because the delay was based on the DOL's failure to meet its statutory obligation to certify the LCA in a timely manner. Under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA),96 the DOL's entitlement to a portion of the fee for H-1B petitions requires confirmation to Congress of the seven-day LCA turnaround.97 Given that the DOL receives a portion of the H-1B filing fee solely to meet the statutory requirement of certifying LCAs within seven days of their filing, the DOL's failure to do so should not work against the employer. This argument is consistent with the spirit of AC21, given that the legislative history is replete with references to unjust consequences resulting from administrative delays.98
Furthermore, the filing of a Form I-129 without a certified LCA should not prevent a "proper" filing of the new petition. An application or petition is properly filed when it is received at the Service office, stamped to show the time and date of actual receipt, the petition is properly signed and executed, and the required filing fee is attached.99 This provision only states that an improperly filed petition is one that is not properly signed or is submitted with the wrong filing fee. Furthermore, the fact that the employer is awaiting the certification of the LCA should not necessarily render the petition frivolous.100
May the second employer designate on the I-129 that the petition is for "concurrent" employment? Section 105 provides that an individual "may accept new employment," and does not suggest that he or she must resign from previous employment. Given that the provision does not specifically state that the worker must opt for one employer over another, the individual should be allowed to accept a new job as concurrent employment. The I-129 form provides designation of "concurrent" employment, and there is no reason to believe that this concept no longer exists.
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
91 8 C.F.R. § 214.2. INA § 212(n) sets forth the requirements for a labor condition application.
92 INA § 212(n)(1)(G).
About The Author
Angelo A. Paparelli, Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP, a nine-lawyer firm in Irvine, California that practices exclusively immigration and nationality law. Mr. Paparelli is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment based work visas. His experience also includes the U.S. immigration aspects of international tax and estate planning. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the American Bar Association's Section on International Law and Practice. He also served from 1988 to 1994 as an elected governor on the Board of Directors of the American Immigration Lawyers Association. He is named in the 1990-2001 editions of Best Lawyers in America under the specialization category of Immigration Law. Mr. Paparelli can be reached at email@example.com.
Janet J. Lee is an associate at Paparelli & Partners LLP. Ms. Lee is admitted to practice law in the State of California. Before joining the firm she served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000. She can be reached at firstname.lastname@example.org.