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Question:

My client has applied for a blanket LCA for 12 H1B applicants. Now he wants me to file the actual petitions. Can I take over the petitions? Since I have a blanket LCA for 12 H1Bs, am I correct in assuming that I do not need to file individual LCAs for the 12 Applicants?

Answer (by Angelo Paparelli):

With the foregoing caveat in mind, I offer the following thoughts. The regulations of the INS allow the use of a blanket LCA (an LCA for multiple beneficiaries) as long as each petition refers by file number (INS receipt number) "to all previously approved petitions for the labor condition application". Thus, you need to alert the INS to any previously utilized slots on the LCA by reference to the file number(s). If the slots all remain unfilled, you should so state. But bear in mind that you should nonetheless alert the INS of all of the intended named aliens (assuming you are filing them all concurrently), so that the INS can be assured that you are not seeking more H-1B approvals than are accounted for on the blanket LCA.

You might also consider confirming that the public access folder(s) for the blanket LCA are in proper order and that the employer has confirmed that it has complied fully with the LCA requirements and attestations on the LCA. I did an article for Interpreter Releases called "Skeletons in the Closet: LCA Audits in the Age of H-1B Uncertainty, Parts I and II," published in Interpreter Releases, June, 1996, that might help determine how to audit LCA compliance.

Lastly, you should determine whether the employer is H-1B dependent and whether any H-1B employees would be "exempt" (meaning that they are paid at least $60,000 per annum or possess a relevant masters degree). Recall that if an H-1B dependent employer mixes exempt and non-exempt H-1B workers on the same LCA, then the recruitment and nondisplacement attestations apply to all workers, including those who otherwise would be exempt. For more background on H-1B dependency and related obligations, see the attached link to a recent article I co-authored: http://www.entertheusa.com/publications/awakening_a_slumbering_giant.pdf

For a previous answer concerning H-1B terminations from an employer's perspective, see http://www.ilw.com/immigrationdaily/News/2001,0802-Answer.shtm

Paparelli & Partners LLP:
http://entertheusa.com/publications.htm

This Q & A exchange is part of a 3-part seminar series on H-1Bs at ILW.COM. A distinctive element of this series is the interactivity with the speakers. Apart from the Q & As during the phone seminar, participants can also pose questions such as the one above to the speakers by email.

For more information, or to sign up online, click here
For more information, or to sign up by mail/fax, click here

Disclaimer: The foregoing is general information provided to the public on a subject of great interest to U.S. employers and H-1B workers. It is intended merely as a general review of a complex and confusing subject for which there are very few clear and reliable answers. The information is not intended as legal advice and may not be relied on as such. By providing to the public the general information below, no attorney-client relationship is created. The legal outcome in a given case will completely depend on all of the relevant facts in a given case and thus will vary from case to case. For legal advice and representation, the readers are cautioned to consult a qualified attorney who practices immigration law.


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