Public Access File for applications requiring a Labor Condition Application (LCA)

Overview

• Each time an employer files a Labor Condition Application (LCA) with the Dept. of Labor in connection with an H-1B, H-1B1, or E-3 visa petition, it must create and maintain a “Public Access File” for several documents related to the LCA.
• During the immigration compliance the Public Access File should be kept separate from Foreign National’s personnel file and must contain:
• The two (2) posting notices that were placed at the worksite for 10 business days, notifying all workers of the job role that required the LCA;
• The signed and certified LCA;
• The LCA cover pages, Form ETA 9035CP;
• Documentation used to establish the prevailing wage for the job position;
• Memo describing how the Actual Wage and/or pay scale was determined for the position;
• Summary of benefits offered to U.S. workers who are in the same classification as the Foreign National employee; and
• Certification that the Foreign National employee was given a copy of the signed and certified LCA.

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Timeline

• The Public Access File must be created within one working day after the date on which the LCA is filed with the DOL, and it must be kept either at the principal place of business or the employee’s place of employment.
• The Public Access File must be retained and maintained for one (1) year following the last date the Foreign National was employed in the relevant visa status under the LCA. If the Foreign National’s employment ends prior to the end date of the LCA, or if no nonimmigrant is employed pursuant to the LCA, the LCA should be withdrawn. If the LCA is withdrawn, the employer must continue to maintain the Public Access File for one (1) year from the withdrawal date.