How does an H1B employer Verify FEIN with Department of Labor?

Labor Certification Application (“LCA”) and H-1B Filing

On April 15, 2009, the Department of Labor (“DOL”) launched its iCERT Portal, creating a new electronic system for the submission of Labor Condition Applications. The first step for an employer in an H-1B filing is to obtain an LCA certification from DOL. The LCA is completed on electronic Form ETA 9035E through the DOL iCERT Visa Portal System.

United States Customs and Immigration Service (“USCIS”) does not accept an H-1B petition without a certified LCA. USCIS begins accepting H-1B Cap petitions on April 1, and there has been an enormous rush in H-1B filings in the past few years. The Cap quota is usually exhausted in the first five days leading to a lottery system. Not having a Certified LCA on time can render an H-1B employer unable to file on time, and as a result not qualifying a petition to be accepted in the H-1B cap lottery system.

First Time H-1B Employers (Petitioners)

H-1B employers who routinely file LCAs through the iCERT portal will have their Federal Employer Identification Number (FEIN) already registered and verified by the Office of Foreign Labor Certification (“OFLC”), a division of DOL. However, OFLC might not have FEINs for certain employers registered and verified in their database–especially first-time H-1B filers.

For these H-1B employers, LCAs will not be certfied unless the employer’s Federal Employer Identification Number (FEIN) can be verified by the OFLC. If the employer or their attorney tries submitting an LCA through the iCERT portal, the OFLC system would flag the FEIN entry as an error, due to non-verification. Employer or their attorney representative might get an email from OFLC, that the LCA would not be certified, and further instructions would be provided to submit by fax, e-mail as a PDF, or mail to the Chicago NPC, documents that indicate the validity of the FEIN.

Documents an H-1B Employer should submit for FEIN Verification

  • Letter from IRS noting assignment of the FEIN
  • Federal or state tax return with preprinted label, or a pre-printed tax coupon
  • Documentation from employer’s financial institution showing FEIN
  • Articles of incorporation, business license, or other certifications of business existence
  • State corporate registration documents
  • Other official or government documents
  • Other documents showing FEIN and name of employer

While it is not necessary to submit all the documents in the above list, atleast two documents showing the FEIN would suffice.The FEIN should be clearly visible on the visible on the supporting document.

Submission of FEIN Verification Documents to OFLC/DOL

Employer or their attorney representative should email the scanned documents to DOL, using the address The subject of the email should be “LCA Business Verification Team.” Please note using any other subject line is used, might lead to a significant delay in FEIN verification.

Why should an H-1B Employer begin FEIN Verification way ahead of time?

An employer who intends to file for H-1B, does not have a wait for a specific time to apply for FEIN verification with the DOL. It can be done at any time. However, during the H-1B cap filing season, OFLC/DOL is backlogged with tons of FEIN Verification requests. As a result, it can sometimes take longer than 5-6 days to get a FEIN Verification. There can also be some delay if DOL requests for additional documents for verification. Hence is it is recommended that H-1B employers not wait until the end, but rather get the verification done way ahead of time.

Can H-1B Employee work with more than one Employer at the same time?

H-1B Concurrent Employment Key Facts

  • An H-1B employee can simultaneously work for two different H-1B employers (petitioners). This is also known as “Concurrent Employment”.
  • Each H-1B employer/petitioner must file a separate Labor Condition Application (“LCA”), and subsequently an H-1B petition.
  • Each concurrently filed H-1B petition is individually subject to a quota (unless employers are cap-exempt).
    H-1B employee may work:

    • Full-time for one employer, and part-time for another;
    • Part-time for one or more employers.
  • Each H-1B petition will be approved on its own merit. The H-1B employee can work in with different employers at the same time, as long as:

    • Job Position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.
    • H-1B employee is a “professional” who qualifies to perform skills required by this specialty occupation by way of specialized knowledge and bachelor’s degree or foreign equivalent.
  • It is always advisable that the H-1B employee works in an occupational classification which is similar or very closely related, although with different employers at the same time.

Scenarios for Concurrent Employment

Lets say, for example, an H-1B employee has two approved petitions filed by both, Employer A and Employer B. She initially elects to take up employment with Employer A, but later becomes dissatisfied and switches to Employer B.

Would Employer B’s petition require an H-1B Amendment?

NO. New or amended petition will not be required, as long as there is no “material change” in the terms and conditions of Employer B’s employment, from the originally filed petition.

Could she take a Leave of Absence from Employer A, work for Employer B and then return back to work for Employer A?

YES. If petitions for both Employer A and Employer B have been approved for an H-1B employee, she could take a 6-8 month leave of absence from Employer A to work for Employer B, and then resume working for Employer A without filing a new H-1B petition.

It is important to note that in each of the above scenarios, the original H-1B petition had not been revoked, either by USCIS or by Employer A. Under H-1B regulations, however, an employer is supposed to promptly notify USCICS when the employee is no longer working with the employer, at which time USCIS may then revoke the petition.

Although Employer A faces a risk of front-pay for the term of the LCA, and should have revoked the H-1B petition for a bonafide termination, in this instance no penalty can be applied, and the petition filed by Employer A will remain valid.

Does an H-1B Employee have more than one Visa if employed by more than one Employers?

NO. An H-1B employee can work for multiple employers when in the United States. However, he/she may not hold more than one valid visa in the same classification (here it is H-1B) at the same time. In the above scenarios, even if H-1B employee was outside of the United States when the petition for Employer B was approved, she could be readmitted on the visa issued for Employer A.

Working for Cap Exempt and Non-Exempt Employers simultaneously

An H-1B employee can work simultaneously for a cap-exempt and a non-exempt employer on two different H-1B petitions. However, at the time of filing an H-1B petition with a non-exempt employer:

  • If H-1B employee remains continued to be employed with the cap-exempt employer, he/she will not be counted toward the cap.
  • If the H-1B employee has “ceased” to be employed in a cap-exempt position, then the he/she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number becomes available.
  • If USCIS determines that an H-1B employee has “ceased” to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.