In the Department of Labor (DOL) Quarterly Stakeholder Meeting on 4/15/15, DOL confirmed that 7 days for a Labor Condition Application (LCA) means working days which are days that the Office of Foreign Labor Certifications (OFLC) has analysts working and excludes weekends and holidays – that while in practice OFLC often processes LCA’s within 7 calendar days, the regulatory requirement is 7 working days. The timing of LCA’s is extremely critical during H-1B lottery time, especially for cases begun late that are racing the clock to be submitted during the first 5 days of April. Many people had thought that 7 days for an LCA meant 7 actual days instead of 7 working days, especially as OFLC had apparently consistently delivered LCA’s during that former time span. It should be noted that the statute itself at 8 USC §212(n)(1)(G) says nothing about working days and merely states that the Secretary of Labor shall provide the certification within 7 days of the filing of the application. However, the regulation at 20 CFR §655.740(a)(1) is more specific in saying that the Certifying Officer shall make a determination to certify or not within 7 working days of the date that the application is received and date stamped by the Department. Readers may wonder whether this is a case of the agency filling in the holes of a statute or promulgating a regulation conflicting with it.

Reprinted with permission.

About The Author

Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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