Employers sponsoring H-1B workers must maintain public access files containing Labor Condition Application documentation and supporting materials. These files must be available for public inspection and are subject to Department of Labor audits. This blog provides a comprehensive checklist for LCA public access file compliance.
The LCA public access file must contain the certified LCA, wage documentation showing how the prevailing wage was determined, explanation of the actual wage system, documentation regarding benefits, copies of notices provided to workers, and if applicable, a summary of bargaining representative notification. Files must be created within one working day of LCA filing and maintained for one year beyond the LCA validity period or one year after H-1B employment ends, whichever is later. Public access files must be available for inspection at the employer's principal place of business or the worksite within one working day of a request. Failure to maintain proper files can result in Department of Labor penalties and program debarment.
LCA public access files are required for every H-1B worker under 20 CFR 655.760.
Files must be created within one working day of LCA filing.
Files must be available for public inspection upon request.
Department of Labor can audit files and impose penalties for violations.
Required contents include LCA, wage documentation, and worker notice evidence.
Retention period extends one year beyond LCA period or employment end.
STEM OPT employers have additional documentation requirements.
LCA public access files are required for every H-1B worker under 20 CFR 655.760.
Files must be created within one working day of LCA filing.
Files must be available for public inspection upon request.
Department of Labor can audit files and impose penalties for violations.
Required contents include LCA, wage documentation, and worker notice evidence.
Retention period extends one year beyond LCA period or employment end.
STEM OPT employers have additional documentation requirements.
The certified Labor Condition Application (ETA Form 9035 or 9035E) is the foundational document. Include the complete certified LCA as filed with and approved by the Department of Labor.
Wage documentation must explain how the employer determined the prevailing wage for the position. Include the source of the prevailing wage data (such as a OFLC prevailing wage determination or published survey data) and evidence showing the wage offered meets or exceeds this rate.
Documentation of the employer's actual wage system must explain how the employer determines wages for similarly employed workers. If the actual wage exceeds the prevailing wage, documentation should reflect this.
For positions using OFLC prevailing wage determinations, include a copy of the prevailing wage determination.
For positions using published survey data, include documentation identifying the survey source, the SOC code used, the geographic area, and the wage level applied.
Documentation must show that the wage offered to the H-1B worker equals or exceeds both the prevailing wage and the actual wage paid to similarly employed workers.
Evidence that notice was provided to workers or their representatives must be in the file. The LCA requires notification to workers about the H-1B hiring.
If workers are represented by a bargaining representative, include evidence that the representative received the LCA or notice of filing. A copy of the notice sent and any response received should be retained.
If workers are not represented, include documentation that notice was posted at the worksite. Notice must be posted for ten consecutive days. Include records showing when and where the notice was posted.
The notice must include the number of H-1B workers sought, the occupation and job duties, anticipated period of employment, worksite locations, and wage rates.
Notice must also state that the LCA is available for public inspection and complaints can be filed with the Department of Labor Wage and Hour Division.
Electronic notice satisfies requirements if it is posted on an electronic bulletin board that workers typically access and remains accessible for ten days.
Documentation explaining the employer's benefits offerings must be included. H-1B workers must receive benefits on the same basis as similarly employed U.S. workers.
If the employer offers health insurance, vacation, bonuses, or other benefits, documentation should explain eligibility criteria and confirm that H-1B workers are offered benefits consistent with these criteria.
Benefits documentation need not be elaborate but should establish that the employer has not discriminated against H-1B workers in benefits availability.
The public access file must be created within one working day of filing the LCA. Do not wait for LCA certification or H-1B approval—create the file when you file the LCA.
Files must be maintained for one year beyond the LCA validity period or one year after H-1B employment terminates, whichever is later. If an LCA is valid for three years and the worker leaves after two years, maintain the file for one year after departure.
According to DOL regulations, failure to create and maintain required files can result in civil monetary penalties, back wage orders, and debarment from the H-1B program.
Files must be available at either the employer's principal place of business or the worksite where the H-1B worker is employed. Employers should choose one location and maintain files consistently.
If the employer has multiple worksites, files may be maintained centrally at the principal place of business. The files must be producible for inspection within one working day of a request.
Electronic file maintenance is permissible if files can be accessed and printed within the required timeframe.
Public access files must be available for inspection by any member of the public. "Public" includes job applicants, current employees, union representatives, researchers, journalists, and anyone else who requests access.
Files must also be available to Department of Labor investigators. DOL can conduct audits and investigations of LCA compliance, and public access files are a primary source of evidence.
Employers cannot require explanation of why someone wants to inspect the file or limit access based on who is making the request.
Files must be available for inspection within one working day of a request. If someone requests access on Monday, the file must be available by end of business Tuesday at the latest.
If files are maintained electronically, they should be printable within this timeframe. If maintained physically at a different location than the request, arrangements to provide access within one working day must be made.
Delays beyond one working day can constitute violations, particularly if a pattern of delay suggests intent to obstruct inspection.
Missing LCA copies are a frequent deficiency. Every public access file needs the actual certified LCA document.
Inadequate wage documentation is common. Simply stating the wage offered without documenting how the prevailing wage was determined fails to satisfy requirements.
Missing notice documentation affects many files. Employers often provide notice but fail to retain evidence that notice was given.
Department of Labor investigations may result from complaints, random audits, or other enforcement actions. Investigators review public access files as part of compliance assessment.
Deficiencies can result in civil monetary penalties per violation. Substantial deficiencies or patterns of violation may result in debarment from the H-1B program.
Back wage orders may result if investigations reveal wage underpayment. File deficiencies may prompt broader investigation into employer practices.
Employers of STEM OPT workers have additional documentation requirements beyond the H-1B LCA context. Form I-983 Training Plans must be maintained.
STEM OPT employers must retain evidence of E-Verify enrollment and use. Documentation showing the employer participates in E-Verify is required.
These requirements are separate from LCA public access file requirements but represent parallel documentation obligations for employers using immigration-related work authorization.
The certified Labor Condition Application (ETA Form 9035 or 9035E) is the foundational document. Include the complete certified LCA as filed with and approved by the Department of Labor.
Wage documentation must explain how the employer determined the prevailing wage for the position. Include the source of the prevailing wage data (such as a OFLC prevailing wage determination or published survey data) and evidence showing the wage offered meets or exceeds this rate.
Documentation of the employer's actual wage system must explain how the employer determines wages for similarly employed workers. If the actual wage exceeds the prevailing wage, documentation should reflect this.
For positions using OFLC prevailing wage determinations, include a copy of the prevailing wage determination.
For positions using published survey data, include documentation identifying the survey source, the SOC code used, the geographic area, and the wage level applied.
Documentation must show that the wage offered to the H-1B worker equals or exceeds both the prevailing wage and the actual wage paid to similarly employed workers.
Evidence that notice was provided to workers or their representatives must be in the file. The LCA requires notification to workers about the H-1B hiring.
If workers are represented by a bargaining representative, include evidence that the representative received the LCA or notice of filing. A copy of the notice sent and any response received should be retained.
If workers are not represented, include documentation that notice was posted at the worksite. Notice must be posted for ten consecutive days. Include records showing when and where the notice was posted.
The notice must include the number of H-1B workers sought, the occupation and job duties, anticipated period of employment, worksite locations, and wage rates.
Notice must also state that the LCA is available for public inspection and complaints can be filed with the Department of Labor Wage and Hour Division.
Electronic notice satisfies requirements if it is posted on an electronic bulletin board that workers typically access and remains accessible for ten days.
Documentation explaining the employer's benefits offerings must be included. H-1B workers must receive benefits on the same basis as similarly employed U.S. workers.
If the employer offers health insurance, vacation, bonuses, or other benefits, documentation should explain eligibility criteria and confirm that H-1B workers are offered benefits consistent with these criteria.
Benefits documentation need not be elaborate but should establish that the employer has not discriminated against H-1B workers in benefits availability.
The public access file must be created within one working day of filing the LCA. Do not wait for LCA certification or H-1B approval—create the file when you file the LCA.
Files must be maintained for one year beyond the LCA validity period or one year after H-1B employment terminates, whichever is later. If an LCA is valid for three years and the worker leaves after two years, maintain the file for one year after departure.
According to DOL regulations, failure to create and maintain required files can result in civil monetary penalties, back wage orders, and debarment from the H-1B program.
Files must be available at either the employer's principal place of business or the worksite where the H-1B worker is employed. Employers should choose one location and maintain files consistently.
If the employer has multiple worksites, files may be maintained centrally at the principal place of business. The files must be producible for inspection within one working day of a request.
Electronic file maintenance is permissible if files can be accessed and printed within the required timeframe.
Public access files must be available for inspection by any member of the public. "Public" includes job applicants, current employees, union representatives, researchers, journalists, and anyone else who requests access.
Files must also be available to Department of Labor investigators. DOL can conduct audits and investigations of LCA compliance, and public access files are a primary source of evidence.
Employers cannot require explanation of why someone wants to inspect the file or limit access based on who is making the request.
Files must be available for inspection within one working day of a request. If someone requests access on Monday, the file must be available by end of business Tuesday at the latest.
If files are maintained electronically, they should be printable within this timeframe. If maintained physically at a different location than the request, arrangements to provide access within one working day must be made.
Delays beyond one working day can constitute violations, particularly if a pattern of delay suggests intent to obstruct inspection.
Missing LCA copies are a frequent deficiency. Every public access file needs the actual certified LCA document.
Inadequate wage documentation is common. Simply stating the wage offered without documenting how the prevailing wage was determined fails to satisfy requirements.
Missing notice documentation affects many files. Employers often provide notice but fail to retain evidence that notice was given.
Department of Labor investigations may result from complaints, random audits, or other enforcement actions. Investigators review public access files as part of compliance assessment.
Deficiencies can result in civil monetary penalties per violation. Substantial deficiencies or patterns of violation may result in debarment from the H-1B program.
Back wage orders may result if investigations reveal wage underpayment. File deficiencies may prompt broader investigation into employer practices.
Employers of STEM OPT workers have additional documentation requirements beyond the H-1B LCA context. Form I-983 Training Plans must be maintained.
STEM OPT employers must retain evidence of E-Verify enrollment and use. Documentation showing the employer participates in E-Verify is required.
These requirements are separate from LCA public access file requirements but represent parallel documentation obligations for employers using immigration-related work authorization.
Frequently Asked Questions
Do we need separate files for each H-1B worker?
Yes. Each LCA requires its own public access file. If you file multiple LCAs for the same or different workers, each needs its own file.
Do we need separate files for each H-1B worker?
Yes. Each LCA requires its own public access file. If you file multiple LCAs for the same or different workers, each needs its own file.
Can we charge for copies of public access file documents?
Employers may charge reasonable copying costs for providing copies. However, inspection itself must be free. Charges cannot be set so high as to discourage inspection.
Can we charge for copies of public access file documents?
Employers may charge reasonable copying costs for providing copies. However, inspection itself must be free. Charges cannot be set so high as to discourage inspection.
What if the LCA is withdrawn before the H-1B worker starts?
Maintain the file for one year from the withdrawal date. The file creation requirement applies from filing, so files created should be retained even if the position is never filled.
What if the LCA is withdrawn before the H-1B worker starts?
Maintain the file for one year from the withdrawal date. The file creation requirement applies from filing, so files created should be retained even if the position is never filled.
How do we document electronic notice posting?
Save screenshots or system records showing the notice content, posting date, and posting location. Include evidence showing the ten-day posting period was completed.
How do we document electronic notice posting?
Save screenshots or system records showing the notice content, posting date, and posting location. Include evidence showing the ten-day posting period was completed.
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