What is a Labor Condition Application (LCA), the Public Access File, and what are their purpose?
The DOL is the agency tasked with protecting the U.S. worker and their wages from foreign workers.
With that in mind the H-1B regulations require U.S. employers that sponsor foreign nationals to work in the U.S. in H-1B status to notify the public, and specifically potentially impacted U.S. workers of their intent to hire foreign workers; how many, in what role, where they will perform the work, and the wages that will paid.
Once the workers have been put on Notice the petitioning U.S. employer is responsible for preparing and submitting to the DOL the Labor Condition Application (LCA).
Once the LCA is approved the U.S. employer is required to prepare and maintain the supporting documentation that forms the basis for the LCA.
The U.S. employer must make this documentation available to the public for inspection on demand, within one working day after the date the LCA is filed with the Department of Labor (DOL).
Any member of the public, including co-workers of the foreign national, may request access to the file, and the employer must make the file available to the person requesting within one (1) working day of the request.
The U.S. employer is not required to make copies for the requestor, “[b]ut any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs, for example.“ see https://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62F.pdf
The U.S. employer is required to “retain [the Public Access File (hereinafter PAF)] for a period of one (1) year beyond the last date on which any H-1B nonimmigrant is employed under the labor condition application or, if no nonimmigrants were employed under the labor condition application, one year from the date the labor condition application expired or was withdrawn.” (see 20 CFR 655.760(c)).
The U.S. employee may maintain a physical paper PAF or an electronic copy.
The ability to maintain an electronic copy was confirmed by the Wage & Hour Division after inquiry by the American Immigration Lawyers Association (AILA).
See https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/OFLC_Stakeholder_Meeting_7_March_2017_-_NAFSA_Notes/ – “received confirmation that an employer can maintain a scanned copy of the signed Labor Condition Application and that it does not need to maintain a hard copy of the original signed LCA.”
The public inspection file must include the following elements:
1. The LCA;
2. Rate of pay for the H-1B worker;
3. Description or summary of the actual wage system; sample wage memorandum
4. Prevailing wage rate and its source;
5. Documentation that the notice requirement was satisfied. Notification must include the following:
a. A copy of the actual notice posted in two locations at each place of employment listed on the LCA (the notice may be an exact copy of the LCA, Form ETA – 9035 & 9035E, submitted to the DOL)
b. The dates of posting,
c. The locations of posting.
6. Summary of benefits offered to U.S. workers and H-1B workers;
7. List of entities included as a “single employer”; and
8. In the event of corporate change:
a. Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity;
b. List of H-1B workers transferred to successor entity;
c. Each affected LCA number and effective date;
d. A description of successor entity’s actual wage system; and
e. Successor entity’s employer identification number.
The employer should keep the PAF separate from the H-1B personnel files.