H-1B Public Access Files: A Nuisance but Necessary

A tale from the immigration trenches

Unfortunately, busy employers often look at the mandatory Public Access File requirement for the H-1B employee as a bit of a nuisance and something they will get to “later.” It requires the inclusion of several documents that relate to salary, working conditions, benefits, etc., some of which the employer must prepare. The file should be kept either at company headquarters or at the place of employment of the H-1B worker.

Just this year, our insistence that our business clients maintain proper Public Access Files paid off – in our employee clients’ favor. Our office started out representing Pierre, an entrepreneur from France, for an L-1B. Then his start-up company, based on the East Coast, was bought out by various parties such that the qualifying L relationship disappeared. So we switched Pierre to H-1B. The company morphed a couple more times to the point where Pierre ended up owning less than 10% of the company. Meanwhile the French venture capitalists who owned the majority of the company brought on board a new CEO who decided that neither Pierre nor his French accountant wife, also an H-1B employee, needed to be paid the offered wage or even the prevailing wage listed on the Labor Condition Application. In fact, the company stopped paying Pierre’s wife altogether. Then they reduced Pierre’s pay to the amount that they “thought he was worth.” After warning the company that they must pay the actual wage which must be at least the prevailing wage and after nothing was done, I withdrew as counsel to remain immigration counsel to my original clients, Pierre and his wife.

Meanwhile, Pierre and his wife had found employment lawyers and the decision was made to go to the Department of Labor (DOL) and complain. About 1 year later and after a full investigation including looking at all of our Public Access Files for all of the company’s H-1Bs that we had prepared, Pierre and his wife won their case and the company is now required to pay to Pierre and his wife substantial back pay.

Both Pierre and his wife are now settled in new positions. However, the emotional and financial toll on them due to their employer’s disobedience of the law was severe, and only partially mitigated by the financial award from DOL.

But what would have happened if we hadn’t insisted on those Public Access Files? Not only would our clients have lost their right to back pay but we would have been open to DOL scrutiny ourselves.

As H-1B employees it is essential that you insist that your employer maintain up to date and accurate Public Access Files at all times during your H-1B employment. You never know – one day you too might need DOL’s strong arm.

Article categories: H-1B: Professional Workers

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