LCA denied for FEIN verification? DOL provides some background on its new (some believe ultra vires and incomplete) review of FEINs:
by Prasant Desai, posted Wed, Jan 6, 2010 1:36 PM
The DOL
recently issued FAQ's (PDF)on its new iCert system which
gave some background as to why it has been denying LCA's based its
inability to verify the authenticity of an employer's FEIN. This new review process has
casued havoc on the business immigration
bar.
I was curious about the 2006
GAO recommendations that were referenced in the FAQ. Old
opponents of the H-1B program, Reps. Sensenbrenner and Smith, were
among those who commissioned the GAO review. The GAO found that out
of nearly 1 Million LCAs filed between 2002 and 2005, only 993 LCAs
listed incorrect FEIN prefixes, an error rate of about 1/10 of
1%!
Interestingly, the GAO noted
that DOL officials confirmed that the law only allows DOL to review
LCAs for "obvious inaccuracies." The lead GAO investigator
noted:
"Labor defines an obvious inaccuracy as
when an employer:
• files an application after being
debarred, or disqualified, from participating in the H-1B
program;
• submits an application more than 6
months before the beginning date of the period of
employment;
• identifies multiple occupations on a
single application;
• states a wage rate that is below the
Fair Labor Standards Act minimum wage;
• identifies a wage rate that is below
the prevailing wage on the application; and
•
identifies a wage range where the bottom is lower than the prevailing wage on the
application."
…
… [Labor] officials said if they conducted a
more in-depth review of the [LCA] applications, they could
overreach their legal authority and increase the processing time
for applications. Additionally, they said the integrity of
the H-1B program is ensured through enforcement and by the fact
that there is actual review by staff when the employer submits the
paperwork to USCIS.
Between 2006 and 2009 the
DOL's statutory or regulatory authority in the review of LCA
submissions has NOT changed. Instead, DOL expanded its
authority without public comment and notice through a new
interpretation of the "obvious inaccuracy" standard. Some might say that a review of
FEINs should not be controversial. Unfortunately, that is not what
DOL is doing. What DOL is
doing is comparing the FEIN listed on the LCA against a
non-comprehensive, flawed database. The result: authentic FEINs are
being rejected as "invalid" resulting in the denial of a totally
accurate LCA. So if the DOL
would have laid out how it planned to review FEIN's the public
could have alerted it this problem. Accuracy however doesn't seem to
be of concern to the DOL.
To help the
DOL conduct its review in a more accurate manner you may want to
send evidence that the LCA you are about to file is from an
employer with a valid FEIN. To do so, send some IRS issued
document (see the FAQs for a complete list) which lists your
employer's FEIN to:
·
E-MAIL: [e-mail LCA.Chicago]. In the Subject Line, please
write "LCA Business Verification Team - Proof of Valid FEIN",
or
· MAIL:
Attn: LCA Business Verification Team - Proof of Valid FEIN U.S.
Department of Labor Employment and Training Administration, Office
of Foreign Labor Certification, 844 N. Rush Street, 12th floor,
Chicago, IL 60611
· FAX: (312)
3537757 - On the cover page of the fax, please write "LCA Business
Verification Team Proof of Valid FEIN"