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The Labor Condition Application is an application made by the potential H-1B employer to the U.S. Department of Labor – not to U.S. Citizenship and Immigration Services. It is a prerequisite to the filing of the H-1B application with U.S. Citizenship and Immigration Services (as well as to filing TN petitions for Mexican nationals). It is essentially a certification by the employer that they have complied with certain requirements, and will comply with certain other requirements should the H-1B Petition be granted. A detailed explanation of what the employer is promising may be found here.

These two applications are frequently confused. Both are processed by the Department of Labor, and both are prerequisites for certain filings with U.S. Citizenship and Immigration Services.

However, the Labor Condition Application is a prerequisite to a non-immigrant, or temporary, visa – the H-1B. The Labor Certification is a prerequisite for certain types of Permanent Residence Applications.

Further, the Department of Labor is certifying something different in each case: in the case of the Labor Condition Application, the DOL certifies only that the application submitted by the employer containing the necessary attestations is complete, while for the Labor Certification the Department of Labor is actually certifying that no qualified and willing U.S. worker is available who could perform the job based upon an actual test of the labor market.

Labor Condition Applications are submitted electronically – it is generally a matter of simply filling out a form on-line with information about the employer and the proposed job and submitting, with approval often taking approximately a week to come through.

This submission can only be done after a posting period – where specific information, often contained in a copy of the as-filed Labor Condition Application itself, is posted in two conspicuous places at the work site, and where a compliance file has been completed and is in place.

No. The Labor Condition Application does not confer any immigration status – neither the right to be in the U.S. nor the right to work. Normally, only approval of the actual H-1B petition by USCIS confers the right to be in the U.S. in that status and to work.

There is one quasi-exception to this (even here, filing or approval of the Labor Condition Application for such a petition alone isn’t enough to confer status or employment authorization): an H-1B petition filed by a new employer to change the sponsoring entity of a foreign national who is already working for one employer on a H-1B allows the foreign national to begin work for the new employer once it is filed with USCIS.

Here, use of the approved LCA to file a transfer-of employment petition, without actual approval of that new petition, can permit employment.