“Public Access File” Requirement for H-1B Employers

In a procedure designed to “protect” American workers from the inappropriate hiring and treatment of foreign workers, H-1B employers are required to maintain a file, referred to as the “public access file.” It is to be made available for public inspection, most commonly by the US Department of Labor or US Citizenship and Immigration Services in the event of a random H-1B “audit.”  So H-1B employers should ensure that their public access files are complete and fully compliant with the law.

An H-1B employer must create and maintain a file for each H1B employee. The file must be created within one working day of the filing of a Labor Condition Application (LCA), and stored at either the employer’s principal place of business or the actual location of H-1B employment. The public access file must contain certain supporting documentation, including:

• Notice of Filing, with dates and places of posting written thereon,
• signed, approved LCA,
• documentation of how the employer arrived at the wages paid to H-1B workers and American employees, for example, memorandum about pay system, copy of company’s pay scale, etc.,
• summary of the benefits offered to H-1B workers and American employees, and an explanation for differences, if any, between the two groups, and
• if an employer’s organization/business has a change in corporate structure, and a new H-1B petition is not filed for any continuing employee, a statement that the new employing entity accepts all obligations, liabilities and undertakings of the predecessor entity.

Labor Department regulations require H-1B employers to post the hard copy wherever wage and hour notices or occupational safety notices are normally placed. If there are 2 such bulletin boards, then post at both. The employer must retain the public access file for one year beyond the date of H-1B employment.

It is important for employers to comply with “public access file” requirements. In the event of a government audit, there are potential penalties for failure to do so. However, an H-1B employer’s good-faith efforts to comply can result in reduced penalties.