How long should the Public Access File be kept?

The Public Access File must be retained for a period of one year beyond the last date on which any H-1B was employed under the Labor Condition Application (LCA)

• If not, then for a period of one year from the date the last LCA expired

When should the Public Access File be made available?

• It should be made available to the public within one working day of filing the LCA with the Department of Labor

What Must the Public Access File Contain?

• A copy of all the certified labor condition applications with all pages and cover pages
• Either Form ETA 9035E or Form ETA 9035
• If it is a Form ETA 9035 and the form was submitted through fax
• Then the application containing the original signature shall be maintained by the employer in its files
• If it is a Form ETA 9035E and the form was submitted electronically
• The a printout of the certified application shall be signed by the employer and maintained in its files
• Documentation which provides the wage rate to be paid the H-1B nonimmigrant
• A clear and complete explanation of the system that the employer used to set the “actual wage” that the employer has paid or will pay workers in the occupation for which the H-1B immigrant is sought
• This includes any periodic increases which the system may provide
• Examples:
• Memorandum summarizing the system
• Copy of the employer’s pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action)
• What about payroll records?
• Payroll records are NOT required, but they shall be made available to the Department of Labor in an enforcement action
• A copy of the documentation the employer used to establish the “prevailing wage” for the occupation for which the H-1B nonimmigrant is sought
• A general description of the source and methodology is all that is required to be made available for public examination
• The underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department of Labor in an enforcement action
• A copy of the job notice with which the employer has satisfied the union/employee notification requirements
• Including dates of posting, and a statement identifying two posting locations
• A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B immigrants
• Must also include a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits
• This summary does not need to include proprietary information
• Examples:
• Costs of the benefits to the employer, or the details of stock options or incentive distributions)
• Must also include, where applicable, a statement that some/all H-1B nonimmigrants are receiving “home country” benefits

Additional Requirements for Special Circumstances:

What if the employer has undergone a change in corporate structure?

• Must include a sworn statement by a responsible official of the new employing entity
• The responsible official must swear that he/she accepts all obligations, liabilities, and undertakings under the LCAs filed by the predecessor employing entity
• Must also include a list of each affected LCA and its date of certification, and a description of the actual wage system and EIN of the new employing entity

What if the employer utilizes the definition of “single employer” in the IRC?

• Must include a list of any entities included as part of the single employer in making the determination as to its H-1B dependency status

What if the employer is H-1B dependent or a willful violator?

• Must include a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing the information)
• What if the employer indicated on the LCA that only “exempt” H-1B nonimmigrants will be employed?
• Must include a list of “exempt H-1B nonimmigrants

PRIVATE ACCESS FILE

What is the Private Access File?

• This includes the documentation that do not need to be included in the Public Access File
• This documentation can be kept in private but should be made available to the Department Labor upon request

What must the Private Access File contain?

• Payroll records which show the wage rate for all of the employer’s employees in the same job at the place of employment
• This documentation is not limited to employees with experience and qualifications similar to the H-1B employee
• The H-1B employee only needs to be compared to this latter group of employees for purposes of determining the actual wage rate
• The payroll records should include:
• Employee’s full name
• Home address
• Occupation
• Rate of pay, and
• Hours worked each day if paid other than a salary
• Data used to establish the H-1B employee’s actual wage rate and data underlying the prevailing wage determination
• More specific information than the general description of the prevailing wage source in the public access file
• Documentation on working conditions
• Evidence that the H-1B employee is receiving working conditions equal to the U.S. employees
• Copies of all H-1B applications and extension requests filed with USCIS
• Evidence that a copy of the LCA was given to the H-1B employee on or before the first day of employment
• Documentation as to the calculations to determine H-1B non-dependency is required