DOL Audits: Is your public access file ready for inspection?

In the wake of increased random audits by the Department of Labor, it has become essential that the Public Access File maintained by H1B Employers meet the DOL requirements in all aspects.

What is Public Access File?

Employers who sponsor H-1B Non-immigrants are required to maintain a Public Access File which will contain all the supporting documentation for the Labor Condition Application (LCA) filed online with the Department of Labor. The file is retained by the employer in the work premises but should be ready and made accessible to the public within a day of filing the LCA. The Department of Labor may audit these files at any time. These audits mostly look at the content and authenticity of the documents in the file. 

What must an employer keep in a public access file?

An employer needs to maintain a separate public access folder for each, containing the following:

1.      Copy of the completed LCA

The file must have a copy of the certified labor condition application and cover pages. If the LCA is submitted electronically, a printout of the certified application signed by the employer should be kept in the file. When the LCA is approved, the employer should replace these documents with the approved LCA.

2.      A statement of the wage rate to be paid to the H-1B worker

The file must include a copy of the wage statement, attested to in the Form ETA 9035 or 9035E, must be maintained in this file. Additional documentation may be maintained to show that the wage rate paid to the H-1B non-immigrant is no less than the required wage rate.  This may include the employer’s wage rates for all other employees for the specific employment in question, starting from filing date of LCA till present.

3.      An “actual wage” pay system memorandum

The employer needs to provide a memorandum which must summarize the system the employer used to set the “actual wage” payable to the H1B worker, including any periodic fluctuation which the system may provide, or a copy of the employer’s pay system or scale.

4.      A copy of the documentation used to determine the prevailing wage

The employer needs to include a copy of the documentation used to establish the “prevailing wage”, which can be a general description of the source and methodology of the system.

(a)    If the employer used the provisions of any legal Act to determine the wage, his documentation shall include the determination showing the wage rate for the occupation in the area of intended employment

(b)    If the employer used a union contract to determine wages, the documentation shall include an excerpt from the union contract showing the wage rate(s) for the occupation in question.

(c)    If the employer did not use any particular wage determination method, the documentation shall include a copy of the prevailing wage finding from the SESA for the occupation in question or a copy of the prevailing wage survey for the occupation published by an independent authoritative source which meets DOL’s stated requirements.

5.      A copy of the notification documents.

The employer must include documentation that show it has satisfied the union/employee notification requirements. Such documentation shall include:

a) A copy of the actual notice posted in two locations at each place of employment listed on the LCA,
b) The dates of posting, and
c) The locations of posting.
d) The notice may be an exact copy of the LCA.

6.      Documentation of offer of benefits and eligibility for benefits provided as compensation for services on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers

This shall include a summary of the benefits offered to U.S. workers in the same occupation, including a statement as to how any differentiation in benefits is made if any discrepancy exists (need not include any proprietary information). The documentation shall include -
(a) A copy of any document(s) provided to employees describing the benefits and eligibility etc. (e.g. employee handbooks)
(b) A copy of documentation describing benefit plans and rules
(c) Evidence of benefits actually provided to U.S. workers and H-1B non-immigrants
(d) For MNCs, evidence of benefits provided to the nonimmigrant before and after entering United States.

Documentation for Special Cases and Exceptions

1.      If the employer undergoes any change in corporate structure since filing the LCA

In case of take-over and merging, the file must include a sworn statement by the new corporate authority in acceptance of the obligations, liabilities, and undertakings under the LCA filed by the previous corporate entity. Also, a list of LCAs effected by the change in corporate structure needs to be added, along with any changes in information such as wage rate etc.

2.      If the employer is utilizing the definition of “single employer” for H1-B-dependency status

The file should include the list of all entities included in as part of the single employer in making the determination

3.      If the employer is H-1B-dependent and can only employ exempt non-immigrants as indicated in the LCA

The file should include –
a.       a list of the “exempt” H-1B non-immigrants that the employer has in employment currently
b.      a summary of the recruitment methods used
c.      a statement listing two job posting made while recruiting and
d.      a statement affirming that a copy of the approved LCA was provided to the H-1B worker

Is maintaining a public access file enough?

It’s advisable that in addition to the public access file, the employer keep other documents handy, to produce if requested, e.g. payroll records, proof of working conditions etc.

Also, it’s advisable that the employer keep the public access file away from all other case files pertaining to the employee or business, as any mix-up of documents can either cause delay during audit or even cause the employer to be subjected to legal liability due to any misplaced files which shows contradictory information. As such, DOL does not have right to view each and every document pertaining to the employers business, apart from those mentioned above.

The employer needs to maintain the public access file for a period of one year from the last date on which any H-1B nonimmigrant is employed under the LCA. If no non-immigrants were employed under the LCA, the employer still needs to maintain the file for one year from the date the labor condition application expired or was withdrawn. The required wage rate records needs to be maintained by the employer for a period of three years from the date of their creation.