Last Updated on November 5, 2024
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
Employers must consider many rules and regulations to remain compliant throughout the hiring process for 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 Corporate Immigration Partners, P.C. (CIP PC), to help employers better understand Public Access Files, how they fit into the H-1B visa process, and why meeting compliance standards is important.
Frequently Asked Questions About Public Access Files
What is a Public Access File (PAF)?
Before filing an H-1B petition with USCIS, employers must 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.
According to the Code of Federal Regulations (CFR), employers must make certain materials available to the public within one business day of filing the LCA. A Public Access File (PAF) contains all CFR documents.
PAF Required Documents
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:
- A 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 an H-1B dependent or a willful violator, a summary of recruitment methods and time frames for recruiting U.S. workers.
What Not to Include in a PAF
PAFS should only contain documents required by law. Employers should not include information or documents that could cause liability issues or privacy concerns. They should also not include company financials and confidential employee information in a PAF. Examples of confidential or financial information include employment history, academic records, disciplinary reports and other confidential personal information.
How Should Employers Store Their Public Access Files?
Employers can physically store and secure their PAFs (at the employer’s principal place of business or the worksite) or electronically. We recommend that employers assign a number to each PAF. Employers should also maintain a separate list of how those numbers relate to each employee.
Employers should keep all PAFs separate from the personnel files and in one place to facilitate inspection during an audit. They must retain the PAF for one year beyond the later of the last date an H-1B nonimmigrant is employed under the LCA or the expiration of the LCA period.
Who Can Access Public Access Files?
Any public member who requests access to the documents in a PAF must be permitted access. This includes 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 under-compensated H-1B workers;
- Designation on the H-1B Willful Violators List. (Employers on this list are subject to random investigations by DOL for 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 penalties for violating them. Additionally, employers may face further civil and/or criminal investigations from other government agencies involved in the H-1B process.
To learn more about immigration compliance, Public Access Files, audits and more, check out our comprehensive Resources Center.
You can also contact us for questions about compliance or the H-1B process!
Envoy is pleased to provide you with this information, which was prepared in collaboration with Corporate Immigration Partners, P.C., a U.S. law firm who provides services through the Envoy Platform (the “U.S. Law Firm”).
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. Envoy is not a law firm, and does not provide legal advice. If you would like guidance on how this information may impact your particular situation and you are a client of the U.S. Law Firm, consult your attorney. If you are not a client of the U.S. Law Firm working with Envoy, consult another qualified professional. This website does not create an attorney-client relationship with the U.S. Law Firm.
