Written by attorney William D. Fong

H-1B, the Public Access File

Public access files

In accordance with8 C.F.R. § 655.760(a), employers of H-1B nonimmigrants must create and maintain public access files for each H-1B employee.

The public access file must be created within one working day after the day the LCA is filed with the DOL. The file must be maintained at the employer’s principal place of business or the place of employment. The public access file must contain:

1. A copy of the certified Labor Condition Application (LCA);

2. Documentation which provides the wage rate to be paid the H-1B nonimmigrant (salary & payroll information, pay stubs, IRS documents);

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 (memorandum summarizing the system or a copy of the employer's pay system or scale);

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);

5. A copy of the document(s) with which the employer has satisfied the union/employee notification requirements of 20 CFR §655.734, the Notice of LCA posting in public-access area;

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;

7. Where the employer utilizes the definition of "single employer" in the IRC, a list of entities included as part of the single employer in making the determination as to its H-1B-dependency status;

8. 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;

9. Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment ofU.S. workers (or copies of pertinent documents showing this information).

Retention of records

The employer must retain these records, either at the employer's principal place of business in the U.S.or at the place of employment. Records must be retained 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 through the procedures set forth in subpart I of this part.

Public access

For the duration of the LCA validity, and as long thereafter as the employer has H-1B workers, the employer must make the public access file available within 72 hours of receiving a written or oral request.

H-1B employee copy

Employers are required to provide H-1B employees with a complete copy of the certified LCA no later than the first day the employee reports for work.

No “benching"

Employers must pay H-1B workers the wage shown on the LCA, or the actual wage –whichever is higher, at all times while the LCA is effective. Employers who fail to pay the promised wage are subject to fines and payment of back wages, with penalties. If an employer cannot pay an H-1B worker, the employer must terminate the H-1B and withdraw both the LCA and the H-1B petition. Unless and until an employer withdraws both, the employer remains liable for the promised wage.

Employees may request time off without pay. If an employer is large enough to be subject to the Family Leave Act (FMLA), employee may demand time off without pay as a matter of right. In such cases, it is incumbent upon the employer to document that the employee requested the time off and that it was not due to the employer’s lack or work or inability to pay the promised wage. The DOL presumes that all unpaid time is the result of the employer’s inability to pay, unless the employer offers persuasive proof to the contrary.

H-1B petitions

The DOL enforces the wage and employment conditions and the USCIS monitors all other aspects of H-1B petitions closely. When they find instances of suspected fraud or noncompliance, they refer such cases to Immigration and Customs Enforcement (ICE) for investigation and possible prosecution.

The CIS Fraud Report lists areas of concern emphasized by the CIS in their adjudications. The CIS follows a “zero tolerance" policy with respect to petitioner failures to comply with USCIS H-1B regulations.

The CIS expects H-1B petitioners (employers) to amend or withdraw petitions as material conditions change. For example, if an employee changes job locations, the petitioner must review the facts to determine whether an amended H-1B petition is required. Generally speaking, when an employer must amend an LCA, then an H-1B petition amendment is almost always required as well.

As with the LCA, when an H-1B worker terminates before the end of the petition validity period, the CIS expects the petitioner to notify them and withdraw the petition. Failure to do this subjects the petitioner to continuing enforcement liability.

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