Public Access File
The H-1B Employer shall make filed Labor Condition Application (LCA) and necessary supporting documentation available for public examination at the employers principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with Department of Labor (DOL). It is advisable to maintain a Public Access file separate from the H-1B worker’s personal file. It is good practice to maintain a separate public access inspection file for each H-1B worker.
The following documentation shall be necessary:
- A copy of the certified labor condition application (Form ETA 9035 or Form 9035E) and cover pages (Form ETA 9035CP). If the Form ETA 9035 is submitted by facsimile transmission, the application containing the original signature shall be maintained by the employer in its files. If the Form 9035E is submitted electronically, a printout of the certified application shall be signed by the employer and maintained in its files.
- Documentation which provides the wage rate to be paid the H-1B nonimmigrant.
- A full clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation for which he H-1B nonimmigrant is sought, including any periodic increases which the system may provide- e.g., memorandum summarizing the system or a copy of the employer’s pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action).
- A copy of the documentation the employer used to establish the “prevailing wage” for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for the public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action) and
- A copy of the document(s) with which the employer has satisfied the union/employee notification requirements.
- Summary of the benefits offered to U.S. workers in same occupational classification as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock option or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving “home country” benefits.
- 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 and EIN of the new employing entity.
- Where the employer is H-1B dependent or willful violator, a summary of the recruitment method used and the time frames used and the time frames of the recruitment of U.S. workers or copies of pertinent documents showing this information.
- Where the H-1B employer utilizes the definition of “single employer”, a list of any entities included as part of the single employer in making the determination as to its H-1B –dependency status.
- Where the H-1B employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only “exempt” H-1B nonimmigrant will be employed, a list of such “exempt’ H-1B non immigrants
Retention of Records.
Either at the employer’s principal place of business in the U.S. or at the place of employment, the employer shall retain copies of the records required by this subpart for a period of one 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. Required payroll records for the H-1B employees and other employees in the occupational classification shall be retained at the employer’s principal place of business in the U.S. or at the place of employment for a period of three years from the date(s) of the creation of the record(s), except that if an enforcement action is commenced, all payroll records shall be retained until the enforcement proceeding is completed
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