The Intersection of the LCA and the FEIN
One of the first compliance hurdles an employer needs to clear when seeking to sponsor a potential employee for an H-1B visa, E-3 visa, or H-1B1 visa is to have a Labor Condition Application (“LCA”) certified by the US Department of Labor (“DOL”).
An LCA is an attestation made by the sponsoring employer to the DOL that they, the sponsoring employer, will pay the foreign national at least the minimum prevailing wage for the position based on the position occupation and geographic location of employment. The LCA is completed on electronic Form 9035E through the DOL’s online iCERT system.
In an attempt to protect the integrity of the online LCA process, the DOL implemented a federal employment identification number (“FEIN”) verification step in furtherance of ensuring the accuracy of the information supplied by the employer and that the employer is a bona fide business entity. Employers of all shapes and sizes need to have their FEIN verified prior to submitting an LCA.
An LCA will not be approved unless the employer’s FEIN can be verified by the DOL’s Office of Foreign Labor Certification (“OFLC”). If the LCA is submitted online before an employer’s FEIN has been verified, it will be denied.
If an LCA is denied for this reason, the employer will be asked to submit by fax, e-mail, or mail to the DOL documents that indicate the validity of the FEIN including, but not limited to:
(i) documentation from IRS noting assignment of the FEIN;
(ii) federal or state tax return with preprinted label, or a preprinted tax coupon;
(iii) documentation from employer’s financial institution showing FEIN;
(iv) articles of incorporation, business license, or other certifications of business existence;
(v) state corporate registration documents;
(vi) other official or government documents; or
(vii) other documents showing FEIN and name of employer.
When drafting an LCA through the DOL’s online iCERT system, the DOL will immediately communicate through the iCERT system, even prior to submission of the LCA, whether or not the employer’s FEIN needs to be verified.
In a situation where the FEIN needs to be verified, in order to avoid a denial of the LCA for failure to recognize the FEIN, the employer or attorney representing the employer will need to submit one of the above referenced documents prior to submitting the LCA online.
It usually takes the DOL 2-3 business days to verify the FEIN and once they do they usually send an email – if the evidence was submitted by email, which is the recommended form of submission – confirming that the evidence submitted was accepted and the FEIN is verified.
Once the FEIN is verified, the employer can submit the LCA without having to be concerned about it being denied due to the FEIN.
An employer’s FEIN only needs to be verified once.
When an employer’s FEIN is verified with the DOL, it remains within their database and will be valid for the current LCA filing and all future LCA filings as long as the same FEIN is used.
Despite the numerous types of evidence the DOL states that they accept, all of which are listed above, in our experience the only thing that is sure to work is a letter from the IRS assigning the employer’s FEIN.
In all H-1B, E-3 and H-1B1 cases, one of the first items we request from an employer, if we are unsure of whether or not their FEIN has been verified, is a copy of their IRS FEIN assignment letter. If the employer does not have the letter on file, they can request a copy via fax by contacting the IRS.
