Employers Must Maintain Public Access Files for Each Employee that is a H-1B Recipient

November 05, 2018

All employers must maintain public access files for each employee that is a H-1B recipient. The H-1B visa provides temporary status to live and work in the United States. It is the employer, not the worker, that files the application and, if successful, the H-1B visa is tied to that sponsoring employer. Such employers are required to create an H-1B public access file within one business day of filing a Labor Condition Application (LCA) with U.S. Department of Labor (DOL). The public access file must be retained for one year from the last date on which the H-1B visa holder is employed with the company. Further, payroll records for such H-1B employees and other employees in the same occupational classification are to be retained by the employer at the employer's principal place of business or at the place of employment for three years from the date of creation of the record.

An H-1B public access file must include the following:

  • an original of the certified LCA signed by the employer and the accompanying cover pages;
  • documentation confirming the salary to be paid to the H-1B employee;
  • a full, clear explanation from the employer explaining how it determined the salary it has paid or will pay workers in the occupation for which the H-1B employee is hired, including any periodic increases that the employer's system may provide; for example, the employer may include a memorandum summarizing the analysis used to determine the salary, or a copy of the employer's pay system or pay scale (while payroll records are not required to be placed in the public access file, they must be made available to DOL in an enforcement action);
  • a copy of documentation the employer used to establish the prevailing wage for the occupation for which the H-1B employee was sought, such as a copy of the salary survey from the DOL website that is used for the underlying LCA;
  • a copy of the employer documents used to satisfy the union/employee notification requirements, such as evidence of the notice provided to the bargaining representative, the two internal posting notices dated and signed by the employer, or other notification permissible under the law; and
  • a summary of the benefits offered by the employer to U.S. workers in the same occupational classification as the H-1B employee and a statement detailing how any differentiation in benefits is made when not all employees are offered or receive the same benefits and, where applicable, a statement that some or all H-1B employees are receiving "home country" benefits;

If the employer goes through a corporate restructuring, a sworn statement by an authorized representative of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employer, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and Employer Identification Number (EIN) of the new employing entity (even if the EIN is the same); such a statement should include specific language confirming the new employing entity's agreement to abide by DOL's H-1B regulations applicable to LCA forms, maintain a copy of the statement in the new employing entity's H-1B public access file and make the statement available to any member of DOL, upon request.