An open access file was created to inform the general public the background details of the contingent worker on work authorization (such as H-1B Visa, E-3 Visa among others) in place of a US worker. This documentation includes complete and transparent details of the wages and benefit summaries.
Since 2011, Public Access file or Open Access File has been a requirement mandated by United States Customs and Immigration Services (USCIS). When hiring an H-1B or H-1B1 or E-3 workers, employers are mandated to provide a file containing compliance documents/information called Open Access file or Public Access File for public inspection. This file contains the contingent worker's compliance data, including work authorization information, prevailing wage and actual wage among other data. Most employers commonly ignored preparing the Public Access File due to various reasons, including a lack of enforcement by USCIS.
However, as of Spring of 2017, USCIS announced increased enforcement of the rules, as part of the putting American workers first ruling by the President.
Here are the key building blocks of the open access file.
1) Copy of the certified LCA. Employment Training Administration attests the LCA and the employer must provide such attested LCA, along with the I-129 Petition for Nonimmigrant Worker, to the USCIS as part of the open access file.
2) A Clear explanation of the system that the employer used to set the actual wage the employer has paid or will pay the worker
3) Must document the appropriate prevailing wage for the position.
4) When mentioning the prevailing wage, the employer also must include the source of the Prevailing wage.
5) According to the prevailing wages rules, an employer must include a summary of the benefits to the US worker so as to ensure that the contracted worker/foreign national is accorded the same benefits as the US worker.
6) If there are differences in benefits between the US worker and the H-1B worker, a statement as to how the differentiation in benefits is made also required to be posted.
7) Notice of filing of the LCA (LCA advertisement) that the LCA based job opportunity was physically posted in two conspicuous locations at the worksite(s) where the proposed H-1B/Visa worker will work should be done.
8) Signed acknowledgment of the LCA by the H-1B Employee.
Applications like RightComply automatically track the LCA job postings, collect signed an acknowledgment of receipt of the LCA by the H-1B employee among other things.
The Employer must keep the public access file for a period of one year beyond the date of employment, even if no foreign national is recruited for the LCA.
Besides all documentation, focus on having all the temporary worker’s work visas H-1B files at the front desk, clearly marked and easily accessible. Any visiting ICE agent will immediately recognize the file and will readily know that you are ready and prepared for the inspection.
Check out Rightcomply solution helps you automatically generate such open access files that employers can use to prepare for the public access file. RightComply helps you with H-1B files storage and management ensuring Visa Worker Compliance.
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