On October 23rd, the USCIS Ombudsman made a formal recommendation that the USCIS accept H-1B filings with proof that a Labor Condition Application (LCA) was simply filed, and not necessarily approved yet.   This is in response to the problems created with the Department of Labor's new FEIN (Federal Employer Identification Number) verification process.   Despite submitting  LCA's with valid FEIN's, the Department of Labor has been denying LCA's claiming that the FEIN is invalid.  This is a problem on the part of the Department of Labor.  As a result of this problem, employers and their H-1B employees are  unfairly prejudiced as they cannot file initial H-1B petitions or extensions in a timely manner, even though they had allotted plenty of time to do so.   Employers have had to cease employment of workers, resulting in loss of productivity and income.  Employees sudden work stoppage has resulted in lost wages and having to return to their home country to avoid staying in the U.S. without legal status. 

To remedy this situation until the Department of Labor solves its problems with its FEIN database, the USCIS Ombudsman recommended that the USCIS accept H-1B filings with proof that an LCA had been filed, even if the filing did not include an approved LCA.   The USCIS would then issue a Request for Evidence for the approved LCA, thereby providing additional time for the H-1B petitioner to obtain the approved LCA.   The USCIS Ombudsman also recommended that the USCIS accept late-filed H-1B petitions if the petitioner can show that the reason for the delay was due to an improper denial of the LCA by the Department of Labor.

Despite these recommendations, it remains to be seen whether the USCIS will adopt these measures and provide relief to U.S. employers who have been unfairly prejudiced in their H-1B petition.