H-1B Employers: Have Your H-1B Public Access File Ready For The USCIS Audit

by Mira Mdivani, Esq.

This year, employers not only have heard from ICE on I-9 audits, but USICS (United States Citizenship and Immigration Services) has been busy auditing employers specifically with regard to H-1B-related issues. USCIS claims that over 20% of H-1B employers violate terms of H-1B employment. In 2009, the agency launched the Administrative Site Visit and Verification Program, which includes random on-site inspections of H-1B employers. H-1B employers should be ready for an unexpected visit from USCIS. This is how to prepare:

Proper H-1B process includes preparing an H-1B Public Access File as the LCA is filed [corrected Ed. 08/24/09] and updating it if there are changes in the H-1B employment.

Prepare H-1B Public Access File Before Employment Begins

Employers should prepare documents for a H-1B Public Access File as soon as the H-1B is approved, and in all cases, before the H-1B employment begins. At a minimum, I advise my clients to include the following information into the Public Access File as soon as the LCA is filed [corrected Ed. 08/24/09] :

• [bullet deleted Ed. 08/24/09]
• A copy of the approved LCA (Labor Conditions Application)
• A statement of the Wage Rate to be paid the H-1B worker or workers admitted under the LCA. The wage rate information must be current, i.e. updated if the wage changes
• An “Actual Wage” pay system memorandum
• A copy of prevailing wage documentation
• A copy of the documentation that you have provided notice of the LCA filing to your employees. The documentation must also include the dates when each notice was posted, and the location where each notice was placed.
• Evidence that an H-1B nonimmigrant admitted pursuant to an LCA is provided with a copy of the certified LCA no later than the date he or she reports to work
• A summary of benefits offered to U.S. workers and H-1B nonimmigrants in the same occupational classifications and the benefit elections made by those employees
• A statement explaining the differentiation of benefits where not all employees are offered or receive the same benefits
• A statement that some or all H-1B employees are receiving “home country” benefits, if such are provided. “Home country” benefits are benefits that are provided in the H-1B employee’s home country.
• If there is corporate restructuring, the employer should contact the immigration attorney immediately BEFORE the restructuring takes place for advice on how to update the H-1B Public Access file and what, if any, documents need to be filed with DOL and USCIS before the restructuring takes place.
• If there are changes in the H-1B worker’s duties, working conditions and compensation, new information needs to be added to the Public Access file. Material changes may trigger a need to file a new LCA with the DOL and/or an amended or new I-129 petition with USCIS. Employer should contact the immigration attorney before any changes in the employment are made to ensure the right course of action is taken to comply with H- 1B-related federal immigration requirements.

Update Your Public Access File

Changes in the wage, location, corporate changes affecting who the employer of the H-1B worker is, and other material changes in the conditions of the H-1B employment need to be reflected in the Public Access file. I usually advise my corporate clients to let me know without delay if such changes occur so that we can prepare appropriate documents for the H-1B file, or file a new Labor Condition Application, file an amendment to the H-1B visa, or a new H-1B visa petition, which in turn, triggers an obligation to prepare a new pubic access file.

Create Public Access File ASAP

If you do not have an H-1B Public Access File in place, it is time for you to put together a solid Public Access File. Once the file is prepared, you are ready to deal with USCIS on H-1B related issues. I am not going to spend a lot of time on stating the obvious, which is one they come, it is a bit late to worry about putting together the Public Access File.

© Mira Mdivani

About The Author

Mira Mdivani, Esq. practices immigration law with the Mdivani Law Firm in Overland Park, KS. Mira is an expert in employer immigration compliance plans, I-9 audits, and other business immigration issues. Her articles on the issues can be found on www.uslegalimmigration.com

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