What is an H-1B Visa?
The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. This visa category requires that the beneficiary (the foreign worker) have a Bachelor’s degree, and the Petitioner (the U.S. employer) can employ the worker for up to six years. To learn more about the H-1B visa, click here.
What is a Labor Condition Application & Why Is It Necessary?
When you file an H-1B petition you must include evidence that the job is the type of specialty occupation that requires a bachelor’s degree or higher and evidence that the beneficiary meets the qualifications for the job. Another document that must be submitted with the H-1B petition is a Labor Condition Application that has been certified by the Department of Labor. Under the regulation 8 CFR 214.2(h)(4)(i)(B)(1):
“Before filing a petition for H-1B classification in a specialty occupation, the petitioner shall obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed.”
A Labor Condition Application (Form ETA 9035) is an application submitted to the Department of Labor providing specific information about the petitioner, the job for which the H-1B visa is sought and the wage that the petitioner commits to pay to the H-1B employee. It is a requirement that a certified Labor Condition Application be included with the petition at the time of the H-1B filing in order for the case to be approvable. If you file an H-1B petition without an approved Labor Condition Application a few things could happen, such as USCIS issuing a Request for Evidence (find out more about possible responses to immigrant and nonimmigrant petitions here), but the ultimate result would be a denial of the petition due to the fact that the Labor Condition Application was not certified at the time of filing.
When Should the Petitioner file the Labor Condition Application?
If you have a time sensitive case or are filing for an H-1B for the first time, it is especially important to get the Labor Condition Application approved early. The Department of Labor takes up to 7 working days to review the application and either certify or deny it. Labor Condition Applications are submitted through an online system and due to the automated nature of the system the applications can be denied for small, technical glitches which can hold up the process. There is no fee for submitting a new Labor Condition Application but refiling will delay the H-1B petition filing. Additionally, petitioners must enter their Federal Employer Identification Number (FEIN) and sometimes the online system does not recognize the FEINs of new or smaller companies, which requires them to submit proof of their FEIN to the Department of Labor to get the company verified before they will be allowed to submit the Labor Condition Application.
For more practical information and legal advice on E-2 and other visas, contact Scott Legal, P.C. Call 212-223-2964 or email email@example.com for a consultation.
Kelly R. LeGrand Weiner, Esq. is the Managing Attorney at Scott Legal, P.C. She can be reached at 212-223-2964 or by email at firstname.lastname@example.org
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