On January 28, 2010, Director Mayorkas issued a memorandum to clarify the rule regarding acceptance of H-1B visa petitions filed without a certified Labor Condition Applications (LCA). The new memo confirms that petitioners must wait at least 7 days after the filing of an LCA prior to submitting their H-1b visa petitions without the certified LCA. The idea is that LCAs are taking more than 7 days to adjudicate because of the FEIN validation process. Since the regulations otherwise require the US Department of Labor (USDOL) to adjudicate LCAs within 7 days, the USCIS is telling petitioners that you must now wait out the full 7 days period prior to submitting a petition that is lacking a certified LCA. The USCIS will need a copy of the e-mail confirmation that an LCA was filed to accompany the petition. Further, the USCIS advises petitioners not to submit the certified LCA until it issues an RFE.
Another point in this memorandum states that the USCIS will excuse late filing of a petitioner where the LCA was improperly denied or rejected by the USDOL. In such a case, the USCIS states that the delay in filing is not a fault of the petitioner and thus it must be penalized accordingly.