Employers which hire foreign workers in H-1B nonimmigrant visa status are required to maintain a “public access file” containing certain information regarding the employee’s wages and the employer’s compliance with the Labor Condition Application (“LCA”). Recent changes to the H-1B visa program as a result of the American Competitiveness and Workforce Improvement Act (“ACWIA”) have resulted in additional documentation requirements for the public access file.
To assist employers in complying with the new requirements, following are responses to frequently asked questions.
Q. What is a public access file and do I need one?
A. All employers which employ foreign workers in H-1B nonimmigrant visa status are required to have a public access file. Items that must be included in the public access file are listed below.
Q. What documentation must be maintained in the public access file?
A. As part of the H-1B petition process, the employer is required to prepare and file an LCA with the Department of Labor (“DOL”). In the LCA, the employer attests it is paying the employee the “prevailing wage” for the position and that the employee is being paid the “actual wage” for the position, i.e., the employer is not paying the foreign worker less than U.S. workers performing the same job. Most of the public access file is documents establishing the employer’s compliance, and the following should be included:
- Copy of the filed LCA
- Documentation of the salary
- Explanation of how the “actual wage” was determined
- Documentation or description of the basis for the “prevailing wage” (often this is a copy of the survey used to determine the prevailing wage)
- Documentation that the LCA was posted for the required notification period notifying employees of the LCA filing (or, if in a unionized workplace, that the union was notified)
- And now required under the ACWIA, documentation indicating whether the employer is “H-1B dependent” as defined in the Act, and if so, documentation of additional recruitment and non-layoff provisions made on the LCA
Q. How do I know if I am an “H-1B dependent” employer?
A. Under the ACWIA, an employer is “H-1B dependent” if it has in the United States:
- 25 or fewer full-time equivalent (“FTE”) employees and more than 7 H-1B employees
- Between 26 and 50 FTE employees and more than 12 H-1B employees
- At least 51 FTE employees and a number of H-1B employees equal to at least 15 percent of the FTE employees
If you believe, based upon this formula, that you may be an H-1B dependent employer (and you have not already discussed this matter with us), please contact a Cohen & Grigsby immigration attorney.
Q. How long and where should the LCA be posted?
A. The law requires an employer to post the LCA for ten days in two “conspicuous” locations at the worksite where the H-1B worker will be employed. Acceptable locations for posting are where other notices, i.e., OSHA Notice, Wage and Hour Notice, etc., are displayed. After the ten day posting period, the LCA should be taken down, and a memorandum detailing the dates and locations of posting should be prepared and placed in the public access file.
Q. Should a copy of the LCA be given to the H-1B employee?
A. Yes, and documentation of the employee’s receipt of the copy should be placed in the file.
Q. Where should the public access file be maintained?
A. The public access file may be maintained at either the work location where the H-1B employee works or the company’s main office.
Q. How “public” is the public access file? Do I have to let any employee review this information?
A. The public access file must be open for public examination upon request. The employer, however, is not required to make employees aware of the existence of the public access file nor make it generally known that this information is available for public review. In an H-1B visa program compliance investigation, DOL will ask to view the file, but it does not regularly check public access files otherwise.
Q. How long must I keep the records for the public access file?
A. They must be retained for one year beyond either the period of employment shown on the LCA or the date the LCA was withdrawn. In the event of a DOL investigation, all records must be kept until its resolution.
If you have additional questions regarding a public access file or an H-1B visa program, please contact any member of Cohen & Grigsby's Immigration Group.
