Public Access File: H-1B Contents, Retention, and Penalties

An H-1B Public Access File is the packet of Labor Condition Application documents an employer must assemble and open to public inspection within one working day of filing the LCA with the Department of Labor, well before certification or petition approval.¹ Every H-1B employer needs one file per LCA. Getting the contents, storage, and retention right is not a paperwork nicety: civil fines start at $2,364 per violation and reach $67,367 when a willful violation displaces a U.S. worker.²

What Goes in the File

The anchor document is the certified LCA itself, Form ETA-9035 or ETA-9035E, signed by the employer. It sets out the job title, dates, worksites, and wage commitments that everything else in the file supports.¹

Along with the LCA, the file must contain each of the following:³

A statement of the specific wage rate paid to the H-1B worker, showing it meets or exceeds the LCA rate. Update it whenever the worker’s pay changes.
A full, clear explanation of the actual wage system the employer uses to set pay for all workers in the same occupation, including how experience, education, and other factors affect pay.
Prevailing wage documentation: the wage data or formal prevailing wage determination used to set the floor, plus a description of methodology if a private survey was used.
Proof that current employees received notice of the LCA filing.
A summary of the benefits offered to U.S. workers and H-1B workers, covering items like health insurance, retirement plans, and bonuses.
If the employer relies on the Internal Revenue Code’s “single employer” definition when assessing H-1B dependency, a list of every entity in that group.
After a merger or acquisition, a sworn or notarized statement from the successor accepting all the predecessor’s LCA obligations, the list of transferred H-1B workers, each affected LCA number, a description of the successor’s actual wage system, and the successor’s employer identification number.

Wage Documentation Details

The actual wage explanation is where compliance gaps most often appear. The regulation calls for a “full, clear explanation” of the wage system, not just a dollar figure.⁴ If the company runs formal pay bands, describe them. If pay follows a merit system or ties to years of experience, spell that out. An investigator needs to be able to confirm that the H-1B worker is not paid less than domestic counterparts in the same role.

For the prevailing wage piece, most employers rely on Department of Labor wage statistics for the relevant geographic area. Include the specific data page or the prevailing wage determination letter. Only a general description of the source and methodology is required for public examination. The underlying individual wage records that fed into the prevailing wage calculation are not part of the public file, though the employer must produce them if the Department of Labor opens an enforcement action.⁴

Notice to Current Workers

Every LCA filing triggers a notice obligation, and proof of that notice belongs in the Public Access File. Employers have two ways to satisfy it.⁵

The first is a hard-copy posting in at least two conspicuous locations at each worksite where the H-1B worker will be employed. The notice must go up on or within 30 days before the LCA is filed and stay posted for 10 days. The rule says 10 days, not 10 business days, so leave it up through weekends and holidays.

The second is electronic notification to employees in the affected occupational classification, through email, an intranet bulletin board, or a similar channel. Electronic notice must remain accessible for 10 days, except that a direct individual message such as an email needs to be sent only once.⁶ If some affected employees lack practical computer access, the employer must give them a physical copy or an individual notice. Keep a copy of the posted or electronic notice in the file, along with the dates it was displayed.

Extra Records for H-1B-Dependent Employers

An employer is “H-1B dependent” once its H-1B headcount crosses one of these thresholds:⁷

25 or fewer full-time-equivalent employees, more than 7 H-1B workers
26 to 50 full-time-equivalent employees, more than 12 H-1B workers
51 or more full-time-equivalent employees, H-1B workers equal to at least 15 percent of the FTE workforce

Dependent employers, along with employers previously found to be willful violators, carry additional attestation duties tied to U.S. worker recruitment. Their Public Access File must show the recruiting methods used, copies of job advertisements with run dates and compensation offered, interview documentation, and any offers made to U.S. applicants together with the applicants’ responses.⁸

These extra recruitment records are not required for “exempt” H-1B workers. A worker is exempt if annual compensation is at least $60,000, counting guaranteed cash bonuses but not employer-paid benefits, or if the worker holds a master’s degree or higher in a specialty related to the job.⁹ The $60,000 threshold cannot be prorated for part-time work; a part-time worker earning less than $60,000 a year is not exempt. For employment lasting under a year, the pro-rata share applies, such as $15,000 for three months.

What Stays Out

Anyone can walk in and look at this file, so the line between public and internal matters. Specific payroll records for the H-1B worker and coworkers do not belong in the public file; the employer keeps them separately and produces them only during an enforcement action. The benefits summary does not need to include proprietary information such as the employer’s costs for benefits or the details of stock option and incentive programs.⁴ The individual wage data underlying the prevailing wage calculation is likewise not public.

Beyond what the regulations exclude, use common sense on sensitive identifiers. Social Security numbers, taxpayer identification numbers, and personal home addresses should be redacted from any document before it goes into the file. Nothing requires that information to be visible, and leaving it exposed creates avoidable liability.

Where to Keep It and Who Can See It

The file can live in a physical binder or in electronic form, as long as a company representative can produce it promptly on request or during an inspection. Acceptable locations are the employer’s principal U.S. place of business or the actual worksite where the H-1B worker is employed.¹ For multi-office employers, storing the file at the relevant worksite is usually most practical.

Any member of the public may ask to examine the file. The employer cannot demand a reason, require a nondisclosure agreement, or block the requester from capturing the contents by transcription, scanning, or photography.¹⁰ The employer is not obligated to make photocopies itself, but preventing the visitor from recording the file’s contents can itself be treated as a violation.

When the Wage and Hour Division opens a formal investigation, the standard shifts. The employer must give complete copies of all requested records to the investigator, and location is not an excuse for delay.¹¹ Train the person responsible for producing the file before an inspection ever happens.

How Long to Keep It

Two retention clocks run in parallel, and confusing them is a common mistake.

Public Access File: One Year After Employment Ends

Keep the Public Access File for one year beyond the last date any H-1B worker was employed under that LCA. If no worker was ever employed under the LCA, the one-year clock runs from the date the application expired or was withdrawn.⁴

Payroll Records: Three Years From Creation

Payroll records for the H-1B employee and other workers in the same occupational classification follow a longer timeline: three years from the date each record was created. Store them at the principal U.S. place of business or at the worksite.⁴ If an enforcement action is pending, preserve all payroll records until it is fully resolved, even past the three-year mark.

Once retention periods expire, records can be destroyed under the employer’s standard data-destruction policies. Secure shredding or permanent electronic deletion is prudent given the wage and business information involved.

Penalties for Getting It Wrong

The Department of Labor’s Wage and Hour Division enforces the H-1B program with tiered civil money penalties.¹² The current amounts, last adjusted in January 2025 and in effect for 2026, run as follows:²

Basic violations: up to $2,364 per violation. This includes Public Access File failures that interfere with the government’s ability to determine whether a violation occurred, or that prevent the public from accessing information needed to file a complaint.
Willful violations: up to $9,624 per violation. Covers willful failures on wages, working conditions, notice, LCA accuracy, displacement, or recruitment, as well as willful misrepresentation on the LCA or discrimination against an employee.
Willful violations with displacement: up to $67,367 per violation. Applies when a willful violation displaces a U.S. worker in the 90-day window before or after the H-1B petition is filed.

Fines are not the only exposure. An employer found to have committed willful violations faces debarment from the H-1B program and other immigration programs for at least one year.¹² If the violation involved displacing a U.S. worker, debarment stretches to at least three years.¹³ The Department can also order back wages for H-1B workers who were underpaid, including for nonproductive time caused by employer conditions such as lack of assigned work or waiting on a permit.¹⁴ Because penalties are assessed per violation rather than per audit, a single investigation that spans multiple LCAs can produce fines that compound quickly.

1
U.S. Department of Labor. Form ETA-9035CP Instructions
2
U.S. Department of Labor. Civil Money Penalty Inflation Adjustments
3
U.S. Department of Labor. Fact Sheet 62F – What Records Must an H-1B Employer Make Available to the Public
4
eCFR. 20 CFR 655.760 – What Records Are to Be Made Available to the Public, and What Records Are to Be Retained
5
eCFR. 20 CFR 655.734 – What Is the Fourth LCA Requirement, Regarding Notice
6
U.S. Department of Labor. Fact Sheet 62M – What Are an H-1B Employers Notification Requirements
7
eCFR. 20 CFR 655.736 – What Are H-1B-Dependent Employers and Willful Violator Employers
8
U.S. Department of Labor. Fact Sheet 62E – What Additional Records Must Be Maintained by an H-1B-Dependent or Willful Violator Employer
9
eCFR. 20 CFR 655.737 – What Are Exempt H-1B Nonimmigrants
10
U.S. Department of Labor. Fact Sheet 62F – What Records Must an H-1B Employer Make Available to the Public
11
U.S. Department of Labor. Fact Sheet 62D – What Records Must Be Maintained by All H-1B Employers
12
U.S. Department of Labor. Fact Sheet 62U – What Is the Wage and Hour Divisions Enforcement Authority Under the H-1B Program
13
U.S. Department of Labor. Fact Sheet 62N – What Are the Limitations on Displacement of U.S. Workers
14
U.S. Department of Labor. Fact Sheet 62I – Must an H-1B Employer Pay for Nonproductive Time