VII. Public access files and other records

Due to the employment of H-1B visa holders, health care institutions (as well as all employers of H-1B visa holders) must maintain a public access file, which must be made available to any member of the public upon request. The file should be maintained at the employer’s principal place of business, or at the location where the employee is employed.

The following must be kept in the public access file:

1. Labor Condition Application (LCA) – signed ETA Form 9035;
2. Wage Rate Statement – statement of the actual current rate of pay for the H-1B worker;
3. Prevailing Wage Determination (PWD) – includes a description of the source and methodology for the prevailing wage (PW);
4. Actual Wage Memorandum – memorandum explaining how the employee’s wage was determined;
5. LCA Addendum – A form indicating that the H-1B position has been posted at the site where the employee will work. If the employee moves to a new location at the employer’s company, the employee’s job must again be posted; and
6. Benefits Summary – A description of the benefits that are offered to employees of the company, including an explanation of any eligibility requirements for particular benefits.

 

In addition to the public access file, the following must also be kept but need not be made available to the public upon request:

1. Payroll records, including wages and hours worked, regarding all employees in the same occupation at the place of employment as the H-1B employee;
2. Calculation of the actual wage rate paid to the H-1B worker making use of the employer’s pay system described in the actual wage memorandum in the public access file; and
3. The raw data backing up the PWD in the public access file.

 

Additionally, the employer must post a Notice of Filing Labor Condition Application. The posting is to inform all employees of the company that a LCA has been or will be filed for an H-1B worker. The notice must include the following information: job title; salary; begin date; end date; and work location. This notice must be posted for 10 business days at work locations.  Furthermore, one must list the dates that the notice was posted and removed as well as be signed and dated by a company official.

Complaints alleging misrepresentation of material facts in the LCA and/or failure to comply with the terms of the LCA may be filed with the WHD of the DOL and can result in an investigation and fines, if substantiated.

VI. | Index | VIII.