H-1B Employers Must Comply with Public Access File Requirements

Complying with public access file requirements is a crucial step for employers sponsoring foreign workers under the H-1B visa program. The public access file is designed to promote transparency and accountability, and employers are required to maintain this file throughout the duration of workers’ employment in the U.S., and even beyond. 

“Some may not know the H-1B visa classification requires employers to create and maintain a public access file for each H-1B employee,” said Michael Durham, a partner in the South Bend, Ind., and Chicago offices of Barnes & Thornburg. 

Requirements related to the public access file and the labor condition application (LCA) within it fall under the purview of the U.S. Department of Labor (DOL), noted Yova Borovska, an attorney in the Tampa, Fla., office of Buchanan Ingersoll & Rooney.  

“It’s a critical area of compliance,” she said. “The DOL can conduct an audit of the employer’s public access file to ensure that the employer is being transparent and meeting basic requirements.” 

Borovska added that common missteps include not maintaining the public access file at all, not including the LCA, missing other required documents, and not creating the file quickly enough.  

“There may be more public access file audits under the new administration, so now is a good time to make sure you are compliant,” she said. 

Failure to comply with the public access file requirements may result in penalties, fines, or other adverse actions, such as debarment from using the H-1B program. 

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First, the LCA

Durham briefly outlined the LCA process that precipitates the creation of a public access file.  

Employers must first post a notice about the LCA before filing it with the DOL. The notice must be posted “in at least two conspicuous locations at each place of employment,” for a total of 10 consecutive days on or within 30 days before the LCA is filed, Durham said.  

Alternatively, an employer may provide an electronic copy of the notice to employees. The employer must file an LCA with the DOL containing the required attestations, which include agreeing to pay fair wages and confirming there will be no adverse impact on existing employees. A signed copy of the certified LCA must be provided to the H-1B worker no later than the date the employee starts work. 

Required Documents 

The public access file must be created within one day of filing the LCA, Borovska said. The required documents that make up the file include: 

• A copy of the certified LCA, signed and dated by the employer. 
• Documentation of the worker’s pay rate. 
• Explanation of how the employer determined the worker’s actual wage. “The DOL defines actual wage as the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question,” Durham said. “Payroll records are not required for public display.” 
• Explanation of how the employer determined the prevailing wage. “This may be a general description of the source and methodology,” Durham said. 
• Documentation of employee notification, including dates and location of posted notices. 
• A summary of benefits offered to all workers. 
• In the case of a merger, acquisition, or corporate change of employer, a sworn statement by the successor entity accepting all liabilities of the predecessor entity. 

“If the employer is an H-1B dependent employer, there is additional certification required, including a summary of recruitment methods of U.S. workers used,” Borovska said. 

She cautioned employers that the public access file should not contain private information related to the employee, including payroll documents or the actual H-1B petition. 

Any member of the public requesting access to the documents must be allowed to capture the information, though providing copies to the public is not required. 

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Retention Requirements

Public access file records must be kept either at the employer’s principal place of business in the U.S. or at the place of employment.  

“The employer shall retain the records for a period of one year beyond the last date on which any H-1B worker is employed under the LCA,” Durham said. “If a complaint is filed, the public access file must be kept until the complaint is resolved.”