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 their 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).
What Needs to be Included in the PAF?
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Certified copy of the LCA and cover pages: The PAF must contain a signed copy of the certified LCA (Form ETA 9035) and the related cover pages (Form ETA 9035CP).
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Documentation which provides the wage rate to be paid to the H-1B worker: This should be a statement confirming the actual wage paid to the H-1B worker.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
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A full, clear explanation of the system the employer used to set the actual wage: In order to document that the employee will be paid the higher of either the prevailing wage or the actual wage (the wage normally paid to other similar employees by the employer) the PAF must contain a clear explanation of the system that the employer used to set the actual wage the employer. This is usually in the form of a memorandum summarizing the employer’s pay system or scale.
A detailed job description and the minimum requirements for the position should also be included to demonstrate how the wage level was determined.
- Copy of documentation the Employer used to establish the wage rate: In the majority of cases this will be obtained from the online wage library at Foreign Labor Certification Data Center Also recommended is to include the printout from O*Net which specifies the relevant SOC Code: O*NET OnLine.
- LCA Posting Notice: Another important document to be retained in the PAF is proof of notification to employees or the union representative (if any). Our office will provide the LCA Posting Notice to you at the time of drafting the LCA. This document will need to be posted for 10 consecutive business days in two conspicuous locations at the work location, including third-party off-site locations. Failure to post and document this notice is a common LCA violation.
Notice can also be given electronically via a company intranet or electronic bulletin board.
- A summary of benefits offered to U.S. Workers in the same occupational classifications as H-1B nonimmigrants: This summary need not contain proprietary information such as the costs of the benefits to the employer or the details of stock options etc.
- Documentation regarding a change in corporate structure: Where an employer undergoes a corporate structure the following must be included: A Sworn or notarized statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification and a description of the actual wage system and FEIN of the new employing entity.
- A list of any entities included as part of the single employer: Where the employer utilizes the definition of “single employer,” a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status.
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:
- Proof of posting;
- Letter from Employer confirming move to new location within same MSA and confirming posting dates; and
- Copy of USCIS guidance
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.
If the LCA is withdrawn the PAF should be kept 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.
ADDITIONAL RECORD REQUIREMENTS FOR H-1B DEPENDENT OR WILLFUL VIOLATOR EMPLOYERS
- List of “exempt” H-1B nonimmigrant workers; and
- Summary of recruitment methods, if an employer hired any “non-exempt” H-1B nonimmigrant workers.
AN EMPLOYER MUST PROVIDE THE LCA TO THE EMPLOYEE BY NO LATER THAN THEIR FIRST DAY OF WORK.
It’s crucial to ensure that the employee is provided with a copy of the LCA no later than their first day of work. Have the employee sign a letter acknowledging receipt of the LCA. 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 Department of Labor’s Wage and Hour Division (WH) is tasked with guaranteeing that workers receive the wages stipulated in the LCA and that Employers adhere to the obligations outlined for maintaining a PAF.
Should an employee raise concerns about not receiving the correct wages they have a legal right to complain to WH. If this happens the employer should anticipate an investigation, potentially involving an announced site visit. In addition to penalties, WH may require employers to make payment for back wages. Additionally, employers found in violation of specific regulations could be subject to exclusion from the H-1B program.
If you have questions about maintaining Public Access Files or would like to arrange an internal mock audit please contact PLG Partner Chris Prescott at cprescott@patellegal.com.