Author
Mona Kesar, Esq.
Immigration Attorney
Kesar Law, LLC
Many first-time H-1B employers encounter an unexpected warning while preparing for a Labor Condition Application (LCA) through the Department of Labor’s Foreign Labor Application Gateway (FLAG) system. The warning typically states that the employer’s Federal Employer Identification Number (FEIN) cannot be verified. Although this message can be concerning, it is generally a routine administrative issue that can be resolved through the Department of Labor’s FEIN verification process.
Before an employer may file an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), it must first obtain a certified Labor Condition Application. The LCA process is governed by INA § 212(n), 8 U.S.C. § 1182(n), and 20 C.F.R. Part 655, which require employers to attest to wages, working conditions, and notice obligations. As part of that process, the Department of Labor verifies the employer’s identity and business existence.
If an employer has never previously filed an LCA using its current FEIN through the FLAG or legacy iCERT system, the FEIN may not yet be recognized in the Department of Labor’s database. Until the FEIN is validated, the employer may be unable to submit the LCA certification.
To complete the verification process, employers generally submit documentation to establish the validity of the FEIN. While the Department of Labor may accept various forms of evidence, the most reliable document is typically the IRS SS-4 FEIN Assignment Notice or another IRS-issued document displaying the employer’s legal name and FEIN. In practice, FEIN verification requests submitted by email are often processed within approximately one to three business days, allowing the employer to proceed with the LCA filing shortly thereafter.
The FEIN verification requirement does not indicate a problem with the employer or the H-1B case. Rather, it is a safeguard used by the Department of Labor to confirm that the employer is a legitimate business entity before processing Labor Condition Applications. Once verified, the FEIN is generally recognized for future filings, making subsequent H-1B cases significantly more efficient.
Employers anticipating H-1B sponsorship should consider addressing FEIN verification before filing deadlines, particularly during the annual H-1B cap season or time-sensitive petitions. Early verification can help avoid unnecessary delays and ensure a smoother H-1B filing process.
Legal Authority
The Labor Condition Application requirement arises under INA § 212(n), 8 U.S.C. § 1182(n). Department of Labor regulations governing LCAs are found at 20 C.F.R. Part 655, Subparts H and I, while H-1B petition requirements are governed by INA § 214(i) and 8 C.F.R. § 214.2(h).
Disclaimer
This article is provided for educational and informational purposes only and does not constitute legal advice. Reading this information does not create an attorney-client relationship with Kesar Law LLC or its attorneys. Employers and foreign nationals should consult qualified immigration counsel regarding their specific facts and circumstances before taking action on any immigration matter.
