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Federal Regulations require US Employers to set up a Public Access File documenting compliance with obligations set out in Employers’ Labor Condition Applications (LCAs) that are filed as part of many Employer sponsored work visas. The government conducts random audits to ensure compliance with the LCA requirements, and those audits are increasing. Employers need to be prepared!
Public Access Files - 7 requirements:
Public Access Files (PAFs) need to be created when an LCA is filed for an H-1B. We have broken down the requirements into seven (7) items that must be included in Employers’ Public Access Files, and we explain these in detail during our trainings. PAFs must include: 1. Labor Condition Application – ETA 9035 LCA
2. Wage Rate Memo – specifying wage to be paid to the H-1B worker
3. Actual Wage Memo – specifying wage range paid to other workers in same position
4. Prevailing Wage Documentation
5. Posted Notice
6. Evidence that Copy of Certified Signed LCA was sent to H-1B Worker
7. A summary of Benefits
8. H-1B Approval Notice (not required, but recommended)
*** Although not required by regulation, we recommend also including the H-1B Approval Notice because it’s helpful.
Employers may accidentally fall into non-compliance:
Most Employers comply or want to with LCA requirements, but they fail to properly and/or timely document this compliance because they are not trained on how to identify LCA issues and they don’t know how to complete the Public Access File.
Failure to comply with federally mandated LCA and Public Access File requirements could mean fines/penalties for the Employer, possibly losing their international employees, possible debarment from using the H-1B program, and potentially inviting further government audits and investigations such as I-9 audits, IRS investigations, fraud and conspiracy investigations, which can carry heavier fines, and in extreme cases even jail time.
LCA and Public Access File compliance can be difficult to discern from the language in the federal regulations, 20 CFR Section 655: http://www.gpo.gov/fdsys/pkg/CFR-2008-title20-vol3/pdf/CFR-2008-title20-vol3-sec655-760.pdf.
Employers need to watch for job position changes & corporate structure changes:
It is important for employers to be aware that certain changes to the employee’s position, and certain corporate structure changes may trigger LCA compliance issues. Some changes may trigger needing to file an amended petition or filing a new LCA and a new petition.
Employers Should Ensure their HR is Trained on LCA and Public Access Files Compliance:
If Employers are not sure how to properly complete a Public Access File, they should reach out to their business immigration lawyer for specific legal advice. Whatever you do, don’t change the job position or corporate structure of the company before checking with your corporate immigration lawyer!
LCA and Public Access File Training:
For Public Access File training with sample drafts to assist you in completing your Public Access Files, please consider registering for one of our LCA & Public Access Files Training's here:
Leyla McMullen
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.