In the middle of this year's H-1B cap season, as we onboarded new immigration law firms onto LaborLess, a specific question came up quite a bit: should you file LCAs & post LCA notices for all potential H-1B candidates before the H-1B lottery, or only for those who are eventually selected in the H-1B lottery?
A far as we can tell, there are two major theories - let's explore them briefly below.
Filing LCAs and post LCA notices before H-1B candidates are selected
In the "file and post LCAs before the H-1B lottery" camp, H-1B employers and their immigration law firms file LCAs for all prospective H-1B candidates, even before the registration process. Typically they do this for two reasons.
First, it's free to file LCAs in FLAG, so why not just ahead and do it? Yes there will be a bit of extra work filing and posting LCAs for candidates who aren't eventually selected and thus that work might be seen as time wasted. On the other hand, for those who are selected, their H-1B application process will already have been started, which, during busy cap season particularly for high-volume employers and immigration law firms, any leg up is good.
Second, filing LCAs and posting LCA notices for candidates before the H-1B lottery selections come back ensures that if and when those H-1B candidates are selected in the lottery, their employers (and immigration law firms) won't have to worry about the LCA itself running into any issues or causing delays. With already filed, posted, and certified LCAs, those H-1B applications can just move forward. It's an efficiency play for when H-1B cap season crunch time is here.
Filing LCAs and post LCA notices after H-1B candidates are selected
In the "file and post LCAs after the H-1B lottery" camp, employers and their immigration law firms wait to file LCAs until a candidate has been selected, and thus post the LCA and create the underlying public access file. Often, they opt to do this because, given the low chances of H-1B lottery selection, they don't want to end up unnecessary work into LCA filing and posting for H-1B applications that won't be selected.
The thought here is that there's enough time to handle the LCA process after selections are made, so there's no need to do the "prep" LCA work. This seems to be the more popular option, both for employers with just a few H-1B candidates each year to those with hundreds or event thousands.
Whatever you choose, electronic LCA posting and PAF management is always preferred to hard copy posting and PAFs
From conversations with many dozens of immigration law firms over the past few years since the H-1B registration process was launched in 2020, it doesn't seem like there's a right or wrong answer. It's just a matter of preference around where an H-1B employer, and their imigration law firm, want to allocate resources, and when.
For some being prepared as much as possible is worth it, even if some of that work is ultimately for naught. Others would rather wait and see, and handle the LCA process later, despite the extra work it adds at that time.
Either way, having the capability of electronically posting LCA notice and creating and managing PAFs makes all of this easier. If you're thinking about the LCA and PAF process for your cap cases, whether you're an immigration lawyer supporting companies or the direct H-1B employer, LaborLess can get you away from hard copy LCA posting and cabinets of PAF folders and into an automated, digitized and streamlined LCA compliance platform.
Check out our demo here, and reach out to us to learn more!