Public Access File

Whenever an employer files a labor condition application (“LCA”) with the U.S. Department of Labor, it must maintain a Public Access File. The Public Access File must be available for public inspection within 24 hours after the LCA is filed. The Public Access File must be maintained at either the employer’s principal place of business or at the actual worksite. The Public Access File needs to be accessible all interested and aggrieved parties. The Public Access File should be separate from the H-1B file.  The following documentation is required:

1. A copy of the filed LCA (a copy of the certified and signed LCA should be placed in Public Access File as soon as available);

2. Documentation which provides the wage rate to be paid to H-1B nonimmigrant(s);

3. A memorandum to the file detailing the system that the employer used to set the “actual wage” paid in the position.  In other words, it must detail the pay scale or pay system;

4.   Documentation used to establish the prevailing wage (i.e. state’s prevailing wage determination);

5.   Copy of notice given to union or employees;

6.   Memorandum to file offered to U.S. workers in the same position as the alien and if necessarily, how the benefits are different;

7.   If employer holds itself out to be a “single-employer” as defined by Internal Revenue Service, a list of legal entities included as part of the single-employer (see 20 C.F.R. §655.736(d)(7);

8.   If the employer is H-1B dependant or willful violator and alien is exempt under 20 C.F.R. §655.737, a list of such exempt employees; and

9.   If the employer is H-1B dependent or willful violator, a memorandum of recruitment methods used and the time frames of recruitment of U.S. workers. 

Retention of Records: The aforementioned Public Access File must be retained for one year beyond the LCA period.  Example: LCA period is from March 01, 2004 until February 28, 2007.  Public Access file must be retained until February 28, 2008.  If a complaint has been filed, then the employer must maintain the Public Access File until the final disposition of the complaint. 




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