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“H-1B employers are required to maintain a Public Access File regarding each H-1B
employee. Employers should keep the Public Access file at the designated location, which
in your case is your office. Per the regulation, please make sure that the Public Access
File is in place within one working day after the date on which the LCA is filed with
DOL. Any member of the public may request access to the file and the file must be
available to the requester within one (1) working day of the request.
The following items should be included in the Public Access File:
Labor Condition Application, ETA 9035 LCA
Please place a copy of the filed LCA in the Public Access File. Once the LCA is
certified, please sign it and replace the unsigned copy in the Public Access File.
Wage Rate Memo
A statement of the Wage Rate to be paid the H-1B worker or workers admitted
under the LCA. The wage rate information must be current. Please write the
statement, sign it and place it in the Public Access File.
Actual Wage Memo
An “Actual Wage” pay system memorandum. Please write this and sign it, then
place it in the Public Access File.
Prevailing Wage Documentation
Place the DOL wage determination or other wage information in the file.
Posted Notice
Please place a copy of the documentation that you have provided notice of the LCA
filing to your employees must be placed into the file. The documentation must also
include the dates when each notice was posted, and the location where each notice
was placed.
Copy of Certified Signed LCA to H-1B Non-Immigrant
Once it is certified, e-mail the certified and signed LCA to the incoming H-1B
worker as soon as it is approved, asking the worker to acknowledge receipt by
email. Print your e-mail to them and their e-mail to you, with attachment, in this
file.
A Summary of Benefits
Include a summary of benefits offered to U.S. workers and H-1B nonimmigrants in
the same occupational classifications and the benefit elections made by those
employees. Please draft and sign, then place in the file. If Benefits Are Not The
Same, If applicable, include a short statement explaining the differentiation of
benefits where the H-1B employee is not offered the same benefits.
Length of Time to Keep the Public Access File
As per the regulation, the employer shall retain copies of the records required by
the regulation for a period of one year beyond the last date on which any H-1B
nonimmigrant is employed under the labor condition application or, if no
nonimmigrants were employed under the labor condition application, one year
from the date the labor condition application expired or was withdrawn.
Material Change and/or Future Corporate Restructuring
Any material change in employment, such as change of title, duties, location may
trigger an obligation to file a new LCA and amended/new H-1B petition. Please let
us know immediately. Additionally, It is my understanding that you are not
expected to go through any corporate restructuring at this time. However, if you do
go through corporate restructuring, please let me know BEFORE the restructuring
takes place.”
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.