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What Employers Need To Know About The H-1B Public Access File

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Among petition forms, supporting documents and filing fees, the H-1B visa petition must also include a certified Labor Condition Attestation (LCA) to be considered complete. In general, the LCA must be filed through an electronic portal within the U.S. Department of Labor (DOL) for certification before the H-1B visa petition can be filed with the U.S. Department of Homeland Security.

Within one working day of filing the LCA with DOL, an employer must make a complete Public Access File (PAF) ready for public examination. According to 20 CFR 655.760(a). The PAF must contain the following:

  • (1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form ETA 9035E is submitted electronically, a printout of the certified application shall be signed by the employer and maintained in its files and included in the public examination file.
  • (2) Documentation which provides the wage rate to be paid the H-1B nonimmigrant;
  • (3) 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 the 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).
  • (4) 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 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
  • (5) A copy of the document(s) with which the employer has satisfied the union/employee notification requirements of § 655.734 of this part.
  • (6) A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving “home country” benefits (see § 655.731(c)(3));
  • (7) 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 FEIN of the new employing entity (see § 655.730(e)(1)).
  • (8) Where the employer utilizes the definition of “single employer”in the IRC, a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status (see § 655.736(d)(7));
  • (9) 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 (see § 655.737(e)(1));
  • (10) 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) (see § 655.739(i)(4).

The regulations provide the following for retention of these records:

The employer must retain copies of the records required by this PAF 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.

In addition, payroll records for the H-1B employees  must be retained for three years from the date of the creation of the records, with the exception that if an enforcement action is commenced by the government, all payroll records must be retained until the enforcement proceeding is completed.