Most employers experience the H-1B process as a petition: gather the job description, file Form I-129, wait for an approval notice, onboard the employee. The Labor Condition Application that precedes the petition is treated as a formality — a form certified through the Department of Labor's FLAG system in a few days, then filed away.
It is not a formality. The LCA is a set of binding attestations made by the employer to the Department of Labor. Three of them matter every day the worker is employed: pay the required wage, give notice of the filing, and keep a public access file that any interested party can ask to see. Enforcement is complaint-driven, and the complainant is often a former employee who left unhappily.
What the employer attested to
| Attestation | Practical obligation |
|---|---|
| Required wage | Pay at least the higher of the actual wage paid to similarly employed workers at the employer, or the prevailing wage for the occupation in the area of intended employment |
| Working conditions | Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed |
| No strike or lockout | There is no strike or lockout in the occupational classification at the place of employment |
| Notice | Notice of the filing was given to the bargaining representative, or posted at the place of employment in the required manner and for the required period, or delivered by an approved electronic method |
The rules behind these sit in 20 C.F.R. Part 655, and the Department of Labor's Office of Foreign Labor Certification maintains the current forms and guidance. Nothing here should be relied on in place of the regulation itself; the details of notice timing and wage determination are exactly the kind that get revised.
The public access file, item by item
The file must be assembled and available within one working day of filing the LCA, and kept at the employer's principal place of business or the place of employment. It is not the personnel file, and it is not the immigration file — it deliberately excludes anything that would expose the worker's private information.
- A copy of the certified LCA
- Documentation of the wage rate actually paid to the H-1B worker
- A full, clear explanation of the system used to set the actual wage for other employees in the occupation — often a short memorandum describing the pay structure
- Documentation of the prevailing wage rate relied on and the source or methodology used to obtain it
- Proof that notice was given: dated copies of postings with the locations recorded, or evidence of notice to the bargaining representative, or records of the electronic notification
- A summary of the benefits offered to U.S. workers in the same occupational classification, and an explanation of any differentiation
- Where a corporate change has occurred, the sworn successor statement accepting the predecessor's obligations
- For H-1B dependent employers and willful violators placing non-exempt workers, the additional recruitment and non-displacement documentation
Retention runs beyond the employment itself: the file is generally kept for at least one year past the end of the period of employment covered by the LCA, and payroll records supporting the wage obligation are retained separately for the longer period the regulations specify.
Watch out: The single most common failure is the notice documentation. Posting notices and then discarding them, or posting electronically without keeping evidence of what was published and when, leaves a hole that cannot be repaired retroactively. Scan and date every posting the day it goes up, and store it with the file rather than in someone's inbox.
Wage obligations that surprise employers
The required wage is owed from the start of employment, and it does not pause because work is slow. Placing a worker in nonproductive status for reasons connected to the employer — no project, awaiting a client start, waiting for a licence the employer needed to arrange — does not suspend the obligation. This is the rule usually described as the prohibition on benching, and back-wage awards for it are among the most common outcomes of a Wage and Hour Division investigation.
Nonproductive time at the worker's own request, such as unpaid personal leave, is treated differently, but the distinction is fact-specific and the burden of showing it falls on the employer. Deductions that shift the employer's business costs onto the worker — including certain filing costs — can also reduce the wage below the required level in the Department's view.
- Has the wage obligation started? It begins when the worker enters employment, and in any event no later than the outer dates fixed by regulation after entry to the United States or after becoming eligible to work for the employer.
- Is the paid rate still at or above the required wage? Reclassifications, part-time conversions, and unpaid furloughs all put this in question.
- Has the job changed materially? A different occupation, a materially different role, or a move to a new area of intended employment may need a new LCA and an amended petition before the change takes effect.
- Is a worksite change covered? Moves within the same area of intended employment generally need notice at the new site; moves outside it usually need more than that.
- Has employment ended cleanly? A bona fide termination generally requires notifying USCIS to withdraw the petition, withdrawing the LCA, and offering the cost of return transportation abroad. Skipping these steps can leave wage liability running.
How problems surface
Enforcement rarely begins with a random audit. It begins with a person: a laid-off worker who was benched for three months, an employee who discovered the posted wage was higher than the deposit in their account, or a competitor responding to a bid. Any interested party may request the public access file, and the Wage and Hour Division may investigate on a complaint.
Because the same facts often support several claims at once — unpaid wages, retaliation for raising a concern, and immigration-status pressure — employers should treat an LCA question as an employment matter as well as an immigration one. Our guides to retaliation and whistleblower claims and to handbook and policy practice cover the overlapping exposure.
Practical step: Run a self-audit once a year. Pull three public access files at random and check them against the list above; confirm current pay against the certified wage for each active LCA; and reconcile every worker's actual worksite against the LCA on file. Where the review turns up gaps — especially missing notice records or an uncorrected worksite move — an H-1B visa attorney can advise on remediation before a complaint forces the issue.
Quick answers
Who can ask to see the public access file?
Any interested party, which includes members of the public as well as government investigators. That is the point of the word "public". The file is designed so it can be handed over without exposing private information, which is why it excludes personnel records, immigration filings, and anything about the worker beyond the wage documentation the rules require.
Does a fully remote employee change the LCA position?
Often yes. The LCA is tied to an area of intended employment, so an employee working from home in a different metropolitan area may be outside what was certified. Depending on the distance and duration, the answer ranges from posting notice at the new location to obtaining a new LCA and filing an amended petition. Decide before the move, not afterwards.
Can we stop paying during a gap between projects?
Generally not. Where the nonproductive period results from the employer's own decision or from conditions of employment, the required wage continues. Genuine voluntary leave requested by the worker is treated differently, but the employer must be able to evidence that characterisation. Assume the wage keeps running unless you have documentation showing otherwise.
What if the employee resigns and joins a competitor?
Withdraw the petition and the LCA and record the separation date. Wage liability ends with a properly completed termination, not with the employee's departure. The new employer files its own petition and the worker may begin under portability rules — the mechanics are set out in our guide to changing employers on H-1B status.
Is the public access file the same as the petition file?
No. The petition file supports the immigration case, contains the beneficiary's personal documents, and belongs to a different agency's process under 8 C.F.R. § 214.2. Keeping the two physically and procedurally separate is what allows an employer to answer a public request quickly without disclosing anything it should not.
A sensible order of operations
Build the public access file at the moment the LCA is certified, not when someone asks for it — the one-working-day rule assumes exactly that. Keep the notice evidence obsessively. Reconcile pay against the certified wage every time compensation or schedule changes. Treat any worksite move as a compliance event before it is a logistics event. And when the workforce plan moves toward permanent residence — whether through a national interest waiver or an employer-sponsored category — carry the same discipline forward, because the record you build now is the record that gets reviewed later. The rest of the Immigration & Mobility pathway covers those later steps.