What To Do When Your Employer Refuses To Give You Your H-1B Documents
Question: I have no immigration and/or employment documents because my employer refuses to give them to me. What can I do?
This question is common among H1-B employees.
Some H-1B employers withhold key documents such as the Labor Certification Application (LCA) and other H-1B related documentation, even the H-1B approval notice. Sometimes, employers do so out of oversight or disorganization. Sometimes, however, an employer will withhold documents for exploitative reasons - as a means to make the H-1B employees feel they are at the employer's mercy and to intimidate them into being afraid to exert their rights.
It is illegal for an employer to withhold documents like those above. So what can you do about it? In this article, written by attorneys Vonda K. Vandaveer and Michael Brown, the attorney-authors of H-1B Legal Rights blog, we discuss how you can re-claim control of the situation.
The following information describes what documents the employer must give you and what documents they must make available to you or anyone else in the public upon request.
(Please note the information in this post is NOT legal advice; different states have different document-access requirements, and the laws of the states referenced below, for example, have several exceptions that are not covered in this article. If you want legal advice about requesting documents, you should speak to an attorney about your unique circumstances and the specific documents you seek).
What Documents Must My Employer Give Me?
1) LCA. As required by the DOL regulations, the employer must give you a signed copy of the certified ETA-9035 or 9035E no later than the date you report to work. Upon request, the employer shall also provide you with a copy of the cover pages, Form ETA 9035CP. See 20 C.F.R. §655.734(a)(3).
2) H-1B Approval Notice and I-94 Document. If only one copy is available, the employer may keep the upper portion of the I-797(A) approval notice, but the lower portion containing the original I-94 document should be given to you. The instructions on the form direct the employer to do so. You need this I-94 document so you have proof of your right to stay in the United States.
Similarly, for the I-797(B), the instructions notify your employer that it should give you the bottom portion of the approval notice so that you may return to your consulate and apply for a new visa or otherwise re-enter the United States.
3) Personnel File (law is state specific). Many states require that an employer provide an employee, upon his request, a copy of his employee files (also called "personnel file.").
For example, in Wisconsin, an employer is required by Wisconsin law (Wis. Stat. §103.13):
- to keep a personnel file for every employee;
- to include, within that file, any documents used in determining the employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action; and
- to allow the employee to view the personnel file, or get copies of the personnel file, within seven working days of the employee's written request.
To learn more about a particular state's laws about personnel file access and copies, you can search the Internet using the terms "personnel file" and "[State]."
How to Request the Employer's Disclosure of Documents
If you want an H-1B employer to provide you with legally-required documents like those above, you should consider: (1) making your request in writing; and (2) providing legal citations to the laws that require disclosure of the documents (e.g. 20 C.F.R. §655.734(a)(3), in the case of a request for LCA documents).
Please note: we are not saying that you should threaten the employer in any way or threaten legal action. Rather, you should consider sending polite correspondence to the employer that simply informs them of the specific law(s) that require the employer to provide you access to (or copies of) the documents at issue.
H-1B Employer's Public Access File Requirements
In addition to providing you the above-mentioned documents, an H-1B employer is also required to maintain a publicly accessible file containing documents related to the H-1B job.
Specifically, within one working day after the date on which the LCA is filed with DOL, the following documents must be made available at the employer's principal place of business in the United States or at the place of your employment in a file that is open to public inspection. 20 C.F.R. § 655.760:
(1) A copy of the certified LCA (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) An explanation of the system the employer used to set the ``actual wage'' the employer has paid or will pay workers in the jobs 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, but they must be made available to the DOL in an enforcement action.
(4) A copy of the documentation the employer used to establish the ``prevailing wage'' for the job 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 must be made available to the DOL in an enforcement action;
(5) A copy of the document(s) with which the employer has satisfied any union/employee notification requirements;
(6) A summary of the benefits offered to U.S. workers in the same job as H-1B nonimmigrants; a statement as to how any differentiation in benefits is made if 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 Sec. 655.731(c)(3));
(7) If the employer undergoes a corporate restructuring, the new employer must place in the public access file a sworn statement 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 Sec. 655.730(e)(1)).
(8) If the employer utilizes the definition of ``single employer'' in the Internal Revenue Code, it must provide a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status (see 20 C.F.R. § 655.736(d)(7));
(9) If the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA that only exempt'' H-1B nonimmigrants will be employed, it must provide a list of suchexempt'' H-1B nonimmigrants (see 20 C.F.R. § 655.737(e)(1));
(10) If the employer is H-1B-dependent or a willful violator, it must provide 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 20 C.F.R. § 655.739(i)(4).
Duration Employer Must Keep H-1B Related Records
The regulations require the employer to retain copies of the records for one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed under the LCA, one year from the date the labor condition application expired or was withdrawn.
In addition, the regulations require the employer to retain payroll records for the H-1B employees and other employees in the same occupational classification for three years from the date of the creation of the record. If an enforcement action is commenced, the employer must retain all payroll records until the enforcement proceeding is completed.
I've Asked, But My Employer Still Won't Give Me My Documents. What Should I Do?
Refusing to give the H-1B employee a copy of the LCA or to grant access to the public file is a violation of the law subject to penalties, but if you want to make the employer comply, you have to take action.
The first option for action, as mentioned above, is to provide the employer with a written request for the documents, which should include references to the law(s) that require the specific documents be provided.
If the employer does not comply with a written request, you have the option of contacting competent attorneys to learn more about your legal rights and options as an H-1B employee.
Those attorneys may or may not send a written request to the employer on your behalf, and may or may not recommend some sort of legal action. Each situation is different, with many different variables (e.g. your particular state's personnel file laws), so legal advice will differ depending on each person's unique situation.
Another option- at least with some of the documents referenced above-is to obtain them from the government.
If you are not in a rush, have funds available and have the cooperation of your employer, you may request a duplicate H-1B Approval Notice from USCIS by paying a fee and filing Form I-824 available here.
You may request a replacement I-94 by paying another fee and filing Form I-102 available here.