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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"

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