Such a determination occurs when the employer is doing 1 of 3 things:
- Submitting a Labor Condition Application (LCA) to the Department of Labor (DOL)
- Filing a petition (Form I-129) on behalf of a nonimmigrant worker, using the above-mentioned LCA
- Seeking an extension for an existing H-1B employee
There may be other scenarios in which the employer must determine their status. For instance, if, after having already determined their status for an LCA, they restructure their company, they will have to go through the process again for any new LCA’s.