For employers
LCA and Public Access File Compliance
The obligations that outlive the filing. This is where Department of Labor enforcement actually finds employers — not in the petition, in the file nobody built.
- 20 C.F.R. Part 655 Subparts H and I — full current text
- Current public access file contents list and retention periods
- Current notice requirements, including electronic notice conditions
- Current dependent employer and willful violator provisions
- Current investigation and penalty provisions
Which categories trigger obligations
A certified Labor Condition Application is required for H-1B, E-3, and H-1B1. Certifying it means making enforceable attestations — and the obligations run for the duration of the employment, not until the petition is approved.
Authority: 20 C.F.R. Part 655 Subparts H and I. Verify against the current text before relying on it.
Wage requirements
The employer attests it will pay the required wage — the higher of the prevailing wage for the occupation in the area of employment and the actual wage paid to similarly employed workers. Both halves of that comparison have to be documented, and the actual wage component is the one employers cannot reconstruct later.
The wage obligation begins when the worker enters employment or within a defined period after admission, and it does not pause because work is unavailable.
Notice requirements
Notice of the filing must be provided at the place of employment, or to the bargaining representative where one exists, in the manner and for the period the regulations specify. Electronic notice is permitted subject to conditions.
Notice failures are common, entirely avoidable, and easy for an investigator to establish because the evidence of compliance is documentary and either exists or does not.
The public access file
A defined set of documents must be assembled within a short window of filing, retained for a defined period, and made available to any member of the public on request. It is separate from the personnel file, and it must not contain the things employers habitually put in it.
- The certified LCA itself
- Documentation of the wage rate paid to the worker
- The actual wage memorandum explaining how the wage was determined
- The prevailing wage documentation and its source
- Proof of the required notice
- A summary of benefits offered to U.S. workers in the same occupational classification
- Where applicable, documentation relating to corporate changes and to dependent-employer obligations
Benching
Placing a worker in non-productive status for reasons related to employment — no assignment, no project, waiting for a license — does not suspend the wage obligation. Back wage liability in this posture accumulates quietly and is the most expensive single finding in a typical investigation.
Common defects in investigations
- Public access files created after the investigation opened
- Missing or undocumented notice
- Actual wage memoranda that were never written
- Wage payments that stopped during unproductive periods
- Worksite changes handled as an operational matter with no LCA consequence considered
- Files not retained for the required period after the employment ended
- One file assembled for an employee with several sequential LCAs
Building the file from the start
This is recurring compliance work, not a transaction. The practical arrangement that works: a standard file structure applied at every filing, a single internal owner, and a periodic review that catches the worksite changes and wage adjustments nobody flagged.
Done that way, an investigation two years from now is a retrieval task rather than an emergency. Done any other way, it is an emergency.
If you've received a Request for Evidence
The Department of Labor does not send Requests for Evidence. It opens an investigation and asks for the file — usually with very little notice.
What these requests typically ask for
- The complete public access file for every LCA covering the period under review
- Payroll records demonstrating the required wage was paid throughout
- Documentation of notice for each filing
- Records covering any period of non-productive status
- Documentation of worksite changes and how they were handled
If an investigation has opened, do not begin assembling documents before getting advice on what may and may not be created now. That instinct causes more damage than the original defect.
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
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Specialty occupation petitions, cap registration strategy, cap-exempt analysis, change of employer, amendments, extensions.
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H-1B, L-1, O-1, TN, E-1/E-2, E-3, and H-1B1 — which ones are capped, which are nationality-restricted, and which tolerate immigrant intent.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts