H-1B Visa: Creation and Maintenance of the Public Access File
An employer must make documentation relating to the Labor Condition Application (LCA) filed with an employee’s H-1B petition available in a public inspection file within one (1) working day after the date of filing the LCA with the 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.
These records must be retained for a period of one (1) year beyond the last date on which any H-1B worker is employed under an LCA or if no H-1B worker was employed under an LCA, one (1) year from the date the LCA expired or was withdrawn.
Contents of the Public Access File:
- Original certified and signed LCA (please include a copy of the non-certified LCA until such time as the certified LCA is issued by DOL);
- Documentation which provides the wage rate to be paid to the H-1B worker;
- A full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid for the H-1B occupation. For example, a company policy memo summarizing the system of the employer’s pay system or scale (payroll records are not required but must be available for US Department of Labor review if requested);
- Copy of the documentation the employer used to establish the “prevailing wage” for the H-1B position (this office will provide);
- Original “Intent to Hire” postings with signatures;
- A summary of the benefits offered to U.S. workers in the same occupational classification;
- If a corporate structure change occurs, a sworn statement from the successor of the new entity that it accepts all obligations, liabilities and undertakings of the prior entity;
- Original proof that the H-1B worker was provided with a final certified LCA;
- Properly and timely documentation with USCIS (copied to this file) of the termination (voluntary or otherwise) of any H-1B worker prior to the conclusion of his/her authorized period of stay.
Page Summary: Employers have the responsibility to create and maintain public access folders with specific documentation for each H-1B employee.