The Public Access File (H-1B)

Each employer must maintain a Public Access File regarding its filed H-1B Petitions. Maintaining a public access file is an integral part of complying with the documentary requirements of the labor condition application ("LCA") procedures. The Public Access File must be made available to any interested party, upon request, within one working day. The Department of Labor ("DOL") may audit these files at any time.

The Public Access File must be maintained at the employer's principal place of business in the U.S. or at the place of employment. The employer must maintain a separate public access folder for each LCA filed.

The public access file must be maintained for a period of one year past the last date on which the H-1B worker was employed under the LCA or, if no H-1B workers were employed under the LCA due to termination or any other reason, then one year from the date the H-1B petition was withdrawn.

Audits may occur by DOL if a complaint was filed, or if the DOL selects the employers on a random or profile basis for an audit. A random audit occurs when the employer is selected without any reason. A profile audit occurs when the DOL discovers significant LCA violations in a particular industry and the employer is part of the same industry, or the employer has prior violations. An employer can expect an audit, at some point in time.

In most cases an investigator will provide three days notice before arriving at the worksite to review public access files. Sometimes an audit will occur after an anonymous phone call was placed to the employer and the company refused to allow access to those files. This will be considered a violation and an audit will occur. Any member of the public is entitled by law to inspect public access files. In addition to making the public access file available to anyone upon request, the company must make other documents available to the DOL, if requested.

Since the public and the DOL have the right to inspect your company's public access files, it is important not to include documents in those files that can compromise employee privacy, or result in unnecessary liability for the company.

The Public Access File should be segregated from all personal employee files and business files.If a DOL audit should occur you do not want the investigator to discover any documents that could cause company liability. However, if the files are not segregated the DOL may take action based upon what they see in the files such as employee wage and hour violations.

Please note, a complete copy of the H-1B petition should not be included in the public access file, nor should company financials, confidential employee information like academic records, employment history, disciplinary reports, or other documentation properly stored in the employee's personnel file.

Telenga & Associates, PLLC will provide you with all the required documents for your public access file.

• The original certified labor condition application (LCA) and instructional cover
• Documentation which provides the wage rate to be paid to the H-1B nonimmigrant
  
  
  • An explanation of the system the employer used to set the actual wage OR
  • An explanation of the system the employer used to set the prevailing wage. A copy of the prevailing wage survey for the occupation within the area of intended employment
• A copy of the document(s) with which the employer has satisfied the union/employee notification requirements - Posting Notice
• A summary of the benefits offered and confirming that all employees are provided with the same benefits are.
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker
• Where the employer undergoes a change in corporate structure, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system (if applicable) and EIN of the new employing entity
• Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants
• Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information)

1. The payment of civil money penalties of up to $1,000 per violation;
2. The disqualification of the employer from filing any temporary or permanent employment-based immigration petitions for a period of a least one year; and/or
3. The assessment of back-pay for the H-1B worker, if the employer has failed to pay required wages