Public Access File

Employers who sponsor H-1B Petitions are responsible for preparing the supporting documentation that forms the basis for the Labor Condition Application (LCA).

The employer must make the documentation available in a public inspection file within one working day after the date of filing the LCA with the Department of Labor (DOL).

Any member of the public may request access to the file.

The employer must make the file available to the requestor within one working day of the request.

The employer should keep the public inspection file separate from the H-1B personnel file.

The regulations (20 CFR 655.760(c)) require you to “retain [the Public Access File (hereinafter PAF)] for a period of one (1) year beyond the last date on which any H-1B nonimmigrant is employed under the labor condition application or, if no nonimmigrants were employed under the labor condition application, one year from the date the labor condition application expired or was withdrawn.”

DOL guidance has indicated that a digital/electronic PAF may be maintained.

This was conveyed by Office of Foreign Labor Certification (OFLC) during an OFLC Stakeholder Meeting on March 7, 2017:

Follow-Up Conversation with Department of Labor Wage & Hour Division Regarding Electronic Public Access Files

During the September 12, 2016, DOL Stakeholder Meeting, OFLC stated that it believed that a scanned copy of the signed Labor Condition Application (LCA) could be maintained as part of
an electronic LCA public access file but that it would confirm with the DOL Wage & Hour Division on that issue.

AILA reached out to the Wage & Hour Division and received confirmation that an employer can maintain a scanned copy of the signed Labor Condition Application and that it does not need to maintain a hard copy of the original signed LCA.

As such it is recommended that you maintain the PAF (scanned copy of all the documents therein in digital/electronic form is allowed) for no less than one (1) year from the date of expiration noted on the LCA for which the PAF was created.

The public inspection file must include the following elements:

A copy of the completed LCA on Form ETA 9035.

A statement of the wage rate to be paid the H-1B workers admitted under the LCA.

An “actual wage” pay system memorandum. A clear explanation of the system that the employer used to set the “actual wage” paid to workers in the LCA occupation. The memorandum must summarize the employer’s pay system or scale and include specific elements in accordance with regulations.

Click here for a sample actual wage pay system memorandum.

A copy of the prevailing wage determination. A copy of the documentation used to determine the prevailing wage. A general description of the source and methodology will suffice.

A copy of the notification documents. Documentation that the employer has met the requirement that it provided notice of the LCA filing to the bargaining representative, or to its own employees in cases where there is no bargaining representative.

The notification documents must include:

A copy of the actual notice posted in two locations at each place of employment listed on the LCA (the notice may be an exact copy of the LCA) ,

The dates of posting,

The locations of posting.

Click here for a Sample LCA Posting.

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