All organizations in the United States that have H1B employees are required to maintain certain records for each worker in what is known as a public access file (PAF) for the purpose of public inspection and to meet H-1B laws. Without public access files maintained, a company sets itself up for serious penalties if there is an audit requested. In this post, we’ll explore the six key documents that need to be included in each H1B worker’s public access file.
One of the first forms a sponsoring H1B employer has to file with the Department of Labor is a Labor Condition Application. Employers cannot file I-129 petitions for the H-1B visa until the LCA is filed. All employers who file a labor condition application have to manage a public access file for each H1B employee and make it available should an official from the U.S. Department of Labor (DOL) or any individual with related interests request it for an audit.
How Soon Do I Have to Create It?
Based on the Code of Federal Regulations, employers are required to make the public access file available to the public within one day of filing the labor condition application. Be vigilant with the types of files you include – it’s best to not have any unnecessary files added to it for the sake of maintaining employees’ privacy at large.
How Long Does the Public Access File Need to be Maintained?
It should be maintained for one year past the date the H1B employee is employed according to the LCA. Should no employees have been retained in relation to the LCA, the public access file should be kept for one year from the day the LCA expires or is withdrawn.
Key Files to Save in the Employer’s Public Access File
- Copy of the Certified Labor Condition Application (Signed)
Each employee’s PAF needs to have a copy of the signed labor condition application. The certified version is signed by the DOL officer as well as the authorized signer for the petitioning employer.
- Wage and Prevailing Wage Documentation
Every individual PAF should include a statement indicating how the wage for the H1B position was calculated as well as how future wages will be determined. Also include documentation related to how the prevailing wage was determined.
- Evidence of Meeting the Notification Requirements
Be sure to include documentation showing you have satisfied the union employee notification requirements. Employers must place two notices in a clearly visible area for a minimum of ten business days. They should include the following information:
• The number of H-1B nonimmigrants the employer is seeking to employ;
• The occupational classifications in which the H-1B nonimmigrants will be employed;
• The wages offered;
• The period of employment;
• The locations at which the H-1B nonimmigrants will be employed; and
• The statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
After the ten business days has elapsed the notices can be placed in the PAF.
- Summary Statement of Benefits
A statement detailing the benefits (vacation time, bonuses, stock options, insurance, etc.) given to employees from employers should be included and H1B workers are entitled to the same benefits granted to domestic workers
Corporate Reorganization Statement
If corporate restructuring occurs, such as an acquisition or merger, the employer is required to provide the following:
- Sworn/notarized statement from entity taking over acknowledging they accept all liabilities, obligations and responsibilities of the predecessor
- H-1b workers transferred to succeeding entity
- All LCA’s affected by the change and effective date
- Wage system to be employed by the succeeding entity
All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).
Can Public Access Files Be Stored Digitally?
Yes, they can be stored digitally or physically at the employer’s worksite (but should be separated from employees’ personal files for privacy reasons). Since any individual in the public can request to see the files, it’s important to safeguard employees’ information that is not explicitly required to be maintained in the PAF. Do not keep documents related to company financials in the PAF or employee details related to academic history, employment background, disciplinary action against them, etc.
Can public access be denied?
It is considered a DOL violation to deny access to the PAF files and can result in monetary penalties including monetary fines up to $55,570 per violation, debarment from the H-1B program, back wages to undercompensated H-1B workers and more.
Are H-1B employers required to provide PAF copies to the public?
Employers are not required to provide copies but they do have to make it allowable for the public to Pcapture the information through such means as transcription, scanning, or taking photographs, for example.”
Why Does It Matter?
It’s important to pay attention to the information you store in each public access file because failure to do so can result in legal consequences and penalties from the government agencies entangled in the H1B administration. The VisaNation Law Group team has helped countless foreign professionals work in the United States and helped employers recruit talent from overseas to fill their job positions. Learn more about the H1B process here and schedule a consultation to explore the next steps in the process!