For employers sponsoring H-1B, H-1B1 and E-3 foreign nationals for work in the U.S., keeping Public Access Files means staying compliant with immigration regulations
There are many rules and regulations employers must consider in order to remain compliant throughout the process of hiring foreign nationals. One critical requirement for legal compliance is maintaining Public Access Files (PAFs). Employers that do not properly set up or maintain a PAF may face back wage orders, civil penalties and removal from the H-1B program.
We talked with our affiliated law firm, Corporate Immigration Partners, to help employers better understand what Public Access Files are, how they fit into the H-1B visa process and why it's important to meet compliance standards.
Frequently asked questions about Public Access Files
What is a Public Access File (PAF)?
Before filing an H-1B petition with USCIS, employers must first obtain a Labor Condition Application (LCA) from the Department of Labor (DOL). This requirement applies to H-1B, H-1B1, and E-3 visa categories.
Pursuant to the Code of Federal Regulations (CFR), employers must make certain materials available to the public within one business day of filing the LCA. These materials are stored in what is referred to as the Public Access File (PAF).
What Documents are Required for a PAF?
U.S. Department of Labor (DOL) regulations require that the following information be made available to the public within one day of the LCA being filed:
- Signed copy of the certified LCA;
- Documentation of the worker's exact pay rate;
- Explanation of how the employer determined the worker's "actual wage;"
- Explanation of how the employer determined the "prevailing wage;"
- Documentation of how employees were notified, including dates and location of any posted notices;
- Summary of benefits offered to all workers;
- In case of a corporate change:
- Sworn or notarized statement by the successor entity accepting all obligations, liabilities, and undertakings of the predecessor entity;
- List of each affected LCA and date of certification transferred to the successor entity;
- A description of the successor entity's wage system; and,
- Successor entity's employer ID number;
- Where the employer uses the Internal Revenue Code definition of "single employer," a list of any entities included for H-1B determinations;
- Where the employer is H-1B dependent or a willful violator and it indicates an employee is exempt, a list of exempt H-1B employees; and,
- Where the employer is H-1B dependent or a willful violator, a summary of recruitment methods and time frames of recruitment of U.S. workers.
Should Any Documents be Excluded From a PAF?
Only documents that are required by law should be kept in a PAF. Employers should not put information or documents that could cause liability issues or privacy concerns. Company financials and confidential employee information such as employment history, academic records, disciplinary reports and other confidential personal information should not be included in a PAF.
How Should Employers Store Their PAFs?
Employers can choose to store and secure their PAFs either physically (at the employer's principal place of business or at the worksite) or electronically. We recommend that employers assign a number to each PAF, and maintain a separate list of how those numbers relate to each employee.
Employers should keep all of the PAFs separate from the personnel files. PAFs should be kept in one place to facilitate inspection in the event of an audit. Employers must retain the PAF for a period of one year beyond the later of the last date an H-1B nonimmigrant is employed pursuant to the LCA or the expiration of the LCA period.
Who Can Access the PAFs?
Any member of the public who requests access to the documents in a PAF must be permitted access to view and capture the information through photographs, scanning, transcription, and other means. Employers are not required to provide a copy.
Denying public access to H-1B PAF files as requested constitutes a DOL violation, which may result in civil monetary penalties.
What are the Penalties for Failing to Comply with LCA/PAF Requirements?
Violation identified during a PAF audit can result in various penalties, including:
- Monetary fines of up to $55,570 per violation;
- Assessment of back wages to undercompensated H-1B workers;
- Designation on the H-1B Willful Violators List (employers on this list are subject to random investigations by DOL for a period of five years); and
- Debarment from using the H-1B program.
Employers can find current maximum penalty amounts through the DOL's website.
Other Notes for Employers
Employers should regularly review and update their PAFs. Failure to comply with any or all of the PAF requirements can lead to potential direct penalties for violating the PAF requirements, as well as further civil and/or criminal investigations from other government agencies involved in the H-1B process.
Originally Published by Envoy, February 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.