Skip to main content

Can I File my H-1B Petition without a Certified Labor Condition Application?

By September 22, 2016May 18th, 2021H-1B and E-3 Visa, Immigration

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.


FREE H-1B / E-3 Visa Resources

Click on the buttons below in order to claim your free H-1B / E-3 Visa Guide, sign up for our free H-1B / E-3 Visa Webinar, or watch our H-1B / E-3 Visa videos.

Download Our H-1B / E-3 Visa Guide
Sign Up For Our H-1B / E-3 Visa Webinar
Watch Our H-1B / E-3 Visa Videos

Set up an H-1B / E-3 Visa Consultation

For a dedicated one-on-one H-1B / E-3 Visa consultation with one of our lawyers, click on the button below to schedule your consultation.

Schedule a consultation

This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

Leave a Reply

We are happy to offer our H-1B / E-3 visa guide that describes the H-1B / E-3 visa requirements, and other advise to assist with your visa application.
For more info visit our H-1B / E-3 visa service page or schedule a consultation so we can handle your H-1B / E-3 visa process.