Maintaining a public access file is an integral part of complying with H-1B laws. The purpose of a public access file is to create a singular file in the employer’s place of business that contains documents that prove the employer is satisfying the minimum legal H-1B requirements. Once a public access file compliance system is in order, maintenance is quick and easy. Unfortunately, many companies wrongfully do not keep a public access file which could have serious legal consequences in the event of an audit.
Tips for Maintaining a Public Access File
It is important to remember not to include any unnecessary documents in the public access file unless they are specifically required. Since the Department of Labor and the general public have the right to inspect your company’s public access files, unnecessary documents included in the public access file could compromise employee privacy. Here are some example of documents that should not be included in the public access file: a copy of the completed H-1B petition, company financials, confidential employee information such as academic records, employment history, or disciplinary records. Every H-1B employee’s public access file should be separate from their personal file.
Checklist of Documents to Include in the Public Access File:
The following items are listed in the regulations as necessary to include in the H-1B public access file:
- A copy of the completed labor condition application (LCA);
- Documentation proving the wage paid to the H-1B worker, as follows:
- A full, clear explanation of the system the employer used to set the actual wage;
- A full, clear explanation of the system the employer used to set the prevailing wage;
- Proof of satisfying union employee notification requirements (for non-union employees this means posting the notice); and
- A summary statement of benefits offered to U.S. workers and H-1B workers.
We will take a closer look at each of the required documents below.
The Labor Condition Application (LCA)
The labor condition application is a document that a prospective H-1B employer files with the Department of Labor when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment. The LCA is typically 5 pages long and can be submitted to the Department of Labor electronically. The LCA does not contain specific personal information about the prospective employee, but rather about the prospective employee’s job position. Once submitted, the LCA typically takes five to seven business days to be certified. Once the LCA has been certified, the employer must sign the LCA for inclusion in the public access file and also provide a signed copy to be submitted with the original H-1B application.
A Statement of the H-1B Worker’s Wage
This requirement is simply for a statement of the H-1B worker’s salary or wage. It is important to specifically list the H-1B worker’s salary or wage not merely a statement of a salary range or a range of salaries that apply to the H-1B worker.
Actual Wage Memo
“Actual wage” is a technical term for the average wage that the employer pays all other individuals with similar experience and qualifications for the specific employment in question. In determining the wage level, the employer should consider experience, qualifications, education, job responsibility, function, specialized knowledge, and other business factors. The Actual Wage Memo must include enough information about the employer’s method for calculating the actual wage to provide a full and clear explanation. To put it simply, the actual wage is what the employee will be paid.
The Prevailing Wage
The prevailing wage is the wage that represents the “going rate” or the average salary paid to similarly employed workers in the same geographical area. If this wage is higher than the “actual wage” described in the previous section, then the employer must pay the prevailing wage.
The employer’s explanation of the prevailing wage must include a copy of the wage determination itself and a brief statement of the methodology used to determine the result.
Proof the Employer Satisfied the Notice Requirements
The employer must post two notices summarizing the contents of the LCA in at least two conspicuous locations for at least ten business days. The notices must include the employer name, number of H-1B workers, occupational classification as determined by O*NET, wages offered, location of employment, and dates of employment. Once the notices have been posted for the full ten business days, the notices should be taken down, signed, and placed in the public access file.
The Benefits Statement
H-1B workers must be offered the same benefits as similarly employed U.S> workers. To satisfy this requirement, employers should include a brief statement confirming that all employees are provided with the same benefits and provide a brief summary of what those benefits are.
Berardi Immigration Law files dozens of H-1B applications each year. We assist our clients in preparing both the Public Access File and the LCA. If you are interested in filing an H-1B application, please contact our office to schedule a consultation with one of our attorneys today!