What is the H-1B public access file and where is it kept?

The public access file is a set of documents related to the LCA that employers must maintain and make available at the worksite (or at the employer's principal place of business if the worker is at a third-party site). It includes the certified LCA, wage documentation, benefits documentation, and evidence of the posting notice. Any member of the public can request to see it.

Can my employer 'bench' me without pay on H-1B?

No. H-1B employers must pay the prevailing wage for all hours in which the H-1B worker is in the U.S. in H-1B status, even if the worker is not productive or is between assignments. Bench periods without pay are a violation of the LCA wage attestation. If your employer stops paying you during a project gap, they are violating federal law.

What are the wage deductions that are illegal under LCA?

Employers cannot make deductions from H-1B wages that reduce pay below prevailing wage if those deductions are for the employer's benefit. Prohibited deductions include: H-1B filing fees (basic $460 fee, ACWIA fee, fraud prevention fee), attorney fees for the H-1B petition, and penalties for early termination of employment. Deductions for employee-side expenses (health insurance premiums, 401k contributions) are generally permissible.

Does the LCA prevailing wage requirement apply during visa processing?

The wage obligation begins on the date of H-1B status (start date in the petition) and continues through the end of authorized H-1B status. It does not apply during periods when the worker has not yet started employment. If your H-1B start date is October 1 and you actually start November 1, the employer is not obligated to pay for October, but they should discuss this with an attorney.

How do I find out what prevailing wage my employer filed for me?

The LCA is public record. You can search the DOL LCA disclosure data at the DOL Foreign Labor Certification Data Center (flag.dol.gov). Your employer must also provide you a copy of the certified LCA upon request. Your I-129 petition package, which you have a right to a copy of, also contains the LCA reference number.

Can I negotiate a salary higher than prevailing wage?

Absolutely, and you should. The prevailing wage is the legal floor, not a ceiling, not an industry standard, and not what you should accept as fair market compensation. Many H-1B workers mistakenly treat prevailing wage as the going rate. Research market salaries for your role, location, and experience level independently of the LCA.

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H-1B Process

H-1B LCA: What the Labor Condition Application Means for You

Before your employer files your H-1B petition, they must get a certified LCA from the Department of Labor. Here is exactly what that document means and what protections it gives you.

By Sumit PatelUpdated May 202610 min read

What Is the LCA and Why Does It Exist?

The Labor Condition Application (Form ETA-9035E) is a document employers must file with and get certified by the Department of Labor before USCIS will process an H-1B petition. Its purpose is to protect both H-1B workers and U.S. workers from wage depression.

Congress created the LCA requirement because H-1B workers have historically had limited bargaining power, their immigration status depends on their employer, making them reluctant to complain about wage violations. The LCA creates a legal obligation on employers that DOL can enforce independently of the worker.

The Four LCA Attestations

1. WAGES: The employer will pay the H-1B worker the greater of (a) actual wages paid to similarly employed workers at the employer, or (b) the prevailing wage for the occupation in the area of employment.
2. WORKING CONDITIONS: The employer will provide working conditions for the H-1B worker that will not adversely affect the working conditions of workers similarly employed.
3. NO STRIKE/LOCKOUT: There is no strike, lockout, or work stoppage in the course of a labor dispute in the same occupational classification at the place of employment.
4. NOTICE: The employer has provided notice of the LCA filing to the affected workers at the place of employment (either by posting or by electronic notification).

Prevailing Wage Levels Explained

DOL sets prevailing wages at four levels (I through IV) based on the position's SOC code and geographic area. Level I is the 17th percentile of wages for that occupation, entry level. Level II is the 34th percentile, experienced. Level III is the 50th percentile, fully competent. Level IV is the 67th percentile, fully competent senior.

Employers must pay AT LEAST the prevailing wage for the level they select, AND at least the actual wage paid to similar employees. If they select Level I but all their comparable employees earn at Level III wages, they must pay Level III. The LCA level affects your immigration file permanently, it is public record.

Your Rights Under the LCA

If your employer violates the LCA, pays below prevailing wage, benches you without pay, deducts wages that reduce your pay below prevailing wage, you can file a complaint with the DOL Wage and Hour Division. DOL investigates independently and can order back wages, civil penalties, and debarment from future H-1B filings.

DOL complaints are more powerful than USCIS complaints for wage violations because DOL has direct enforcement authority over wages. You do not need to be in valid H-1B status to file a wage complaint, former employees can file up to 12 months after the violation.

Frequently Asked Questions

Authority Sources

Sumit Patel

Immigration Tech Researcher · H1B Visa Jobs

Sumit covers H-1B visa processes, green card pathways, and employment-based immigration for foreign nationals navigating U.S. work authorization.