What's in a H-1B Public Access File? What Employers Need to Know



“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

uslegalimmigration.com/our-lawyers/leyla-mcmullen/

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.


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© 2019 by Corporate Immigration Compliance Institute, LLC

 NOTICE 
Corporate Immigration Compliance Institute does not provide legal advice or engage in the practice of law. The information provided during training and included in the training materials is general information on the topics covered; it not intended to be a fully comprehensive analysis of the subjects addressed. If you have questions about specific applicability of laws, rules and regulations to your specific situation, or other questions of a legal nature, those questions should be directed to your legal counsel.

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United States