Employers who sponsor H-1B Petitions are responsible for preparing the supporting documentation that forms the basis for the Labor Condition Application (LCA).
The employer must make the documentation available in a public inspection file within one working day after the date of filing the LCA with the Department of Labor (DOL).
Any member of the public may request access to the file. The employer must make the file available to the requestor within one working day of the request. The employer should keep the public inspection file separate from the H-1B personnel file.
What Not to Include in Public Access File?
It is important not to include any documents in the Public Access File unless the law specifically requires. Here are some items should not be included in the Public Access File:
- A complete copy of the H-1B petition;
- Company Financials;
- Confidential Employee Information such as academic records, employment history, and disciplinary records;
- Other regular items to keep in the employee personnel file. (Note: Public Access File for H-1B workers must be maintained separately from employee personnel records.)
What to Include in Public Access File?
- A Complete Labor Certification Record (original form, signed and dated);
- A Wage Statement (system used to determine wage for the H-1B worker) or the Actual Wage Memo;
- An Explanation of the Prevailing Wage System;
- Proof the Employer satisfied the Notice Requirements by Posting or Union; and
- The Benefit Statement
Store PAFs Electronically
Recently the Department of Labor’s Office of Foreign Labor Certification confirmed that storing PAFs electronically also satisfied the regulatory requirements and encouraged employers choose one method of storage going forward. Use technology whenever possible, but above all, be consistent.
Maintain PAFs for One Year
Each PAF must be kept for one year past the length of the sponsored employee’s tenure with the employer. It is recommended that employers do not retain PAFs longer than the regulations require. PAF retained beyond the one year requirement are unnecessary liabilities if they contain errors or mistakes.
Prepare for an Audit – Private Access DOL File
A DOL access file must be prepared and available for inspection by the Department of Labor in the event of an audit. It is supposed to be kept separate from the Public Access Files. The DOL access file should not be made available to the public and must include supporting documentation as follows:
- A comparison of the actual wage and the prevailing wage to confirm that the H1B employee is being paid at least the higher of the two wages;
- Satisfaction of the wage requirement documentation that your company affords its H1B employees’ working conditions on the same basis and in accordance with the same criteria as it affords its similarly employed U.S. worker, i.e. payroll records
- Copy of the certified LCA with the signature;
- Proof that the H-1B employee was provided a copy of the LCA on their first day of employment;
- A copy of the Notice of LCA posting;
- A record of the dates and locations where the LCA was posted, or copy of the notice provided to the appropriate bargaining representative.
Our office provides H-1B employers a package of instructions to maintain Public Access File for H-1B workers. It is important to comply with the LCA requirements in order to avoid fines or potential debarment from filing future H-1B cases. Please feel free to contact our office should you have any questions.
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