Employer’s Responsibility To Maintain A Public Access File (PAF)

Posted on Feb 4, 2020 by Chris Prescott

Employer’s responsibility to maintain a Public Access File (PAF)

Under 20 CFR 655.760, employers of H-1B workers (also H-1B1 and E-3) must keep a Public Access File (PAF).

Creation and Access to the PAF

An employer must file an Labor Condition Application (LCA). They must also make its supporting documents available for public inspection. They must do so at the employer’s main U.S. office or at the place of employment. This must occur within one working day after the employer files the LCA with the Department of Labor (DOL).

An employer must provide the LCA to the employee by no later than their first day of work. 

What needs to be included in the PAF?
  1. The PAF must contain a signed copy of the certified LCA (Form ETA 9035) and its cover pages (Form ETA 9035CP).

  2. The documentation should confirm the actual wage paid to the H-1B worker.

  3. The PAF must explain the system the employer used to set the actual wage. The employer must pay the employee the higher of the prevailing wage or their actual wage. The actual wage is the wage the employer pays to other similar employees. The explanation must cover the system the employer used to set the wage. It will cover the wage they have paid or will pay workers. This is usually in the form of a memorandum summarizing the employer’s pay system or scale.

The company based the wage level on a detailed job description. It was also based on the small requirements for the position. Including them will show how we determined the wage level.

  1. It is a copy of documentation the Employer used to set the wage rate. In most cases, they got it from the online wage library. Also recommended is to include the printout from O*Net which specifies the relevant SOC Code.

  1. LCA Posting Notice: Another key document to keep in the PAF is the proof of telling employees or the union rep (if any). Our office will provide the LCA Posting Notice to you at the time of drafting the LCA. Post this document in two obvious places at the work location for 10 days. They include third-party off-site places. Failure to post and document this notice is a common LCA violation. When possible, include proof of posting, such as a photograph.

If the H-1B worker changes location within the same MSA, they must post the original LCA at the new location. In these circumstances, you should maintain the following documents:
    1. Proof of posting;
    2. Letter from Employer confirming a move to a new location within the same MSA. It also confirms the posting dates.
    3. Copy of USCIS guidance.
  1. This is a summary of benefits for U.S. workers in the same jobs as H-1B nonimmigrants. It need not include private details like benefit costs or stock option specifics.

  2. This is about a change in corporate structure. When an employer changes, they must provide a sworn or notarized statement. This must come from a top official of the new employer. The new employer must say that it accepts all the duties in the LCAs filed by the old employer. These duties are obligations, liabilities, and undertakings. The statement must also include a list of each affected LCA and its certification date. It must also include a description of the wage system and the FEIN of the new employer.

  3. The list must include any entities in the “single employer.” This is for employers using the “single employer” definition. It is for the determination of their H-1B-dependency status.

Records Retention Requirements

Employers must keep the PAF for a period of one year beyond the date of employment under the LCA. If the company did not use any foreign nationals under the LCA, they must keep the PAF for one year from the end of the LCA. They must also keep it for one year from the withdrawal of the LCA.

Failing to keep the PAF can result in different penalties. These differ from those for not meeting the LCA requirements.

Do the extra record requirements apply to H-1B-dependent or willful violator employers? Can the public see them?

If a company has:

  • 25 or fewer full-time equal employees and at least 8 H-1B nonimmigrant workers; or

  • 26 – 50 full-time equal employees and at least 13 H-1B nonimmigrant workers; or

  • 51 or more full-time equal employees of whom 15% or more are H-1B nonimmigrant workers.

We must maintain the following records:

  1. List of “exempt” H-1B nonimmigrant workers; and
  2. Summary of recruitment methods, if an employer hired any “non-exempt” H-1B nonimmigrant workers.

Important:

Keep a letter signed by the employer confirming they provided the LCA. The employer and the employee should both sign it to show they received it. Yet, keep this letter in the employee’s file, not in the PAF.

Employers should keep all the PAFs separate from the personnel files. To make it easier for inspection during a DOL visit, keep PAFs in one place. To protect the employee’s privacy, do not include any personal records in the PAF. Employers should give a number to each PAF. Then, they should keep a list of how those numbers relate to each employee.

Penalties for LCA violations

The Wage and Hour Division (WH) of the Department of Labor is responsible for ensuring that workers receive the promised wages on the LCA, and that Employers are complying with the requirements for maintaining a public access file.

WH may assess civil penalties for each violation.  There are three levels of penalties for LCA violations as follows which apply on or after 01/16/20:

  1. The most penalty is $1,928.00. It covers violations about:

    • LCA posting notice requirements

    • Misrepresentation on LCA

    • Early termination penalties

    • Payment of H-1B fees by employees

    • Public access violations

  2. The max penalty is $7,846.00 for violations. They include willful failure to pay LCA wages. Also, failure to post LCA notices and willful LCA misrepresentation. , discrimination against an employee.

  3. The penalty is at most $54,921. It is for a willful violation that displaces a US worker. This is due to the above violations.

Also to the above penalties, WH may also must an employer to make a payment for back wages. Employers who commit certain violations may also face a ban from the H-1B program. They may also face bans from other immigrant programs. The ban lasts at least one year.

For further details see: H-1B Program

If you have questions about maintaining Public Access Files or would like to arrange an internal mock audit please contact our Senior Immigration Attorney, Chris Prescott at cprescott@patellegal.com.