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

Pursuant to 20 CFR 655.760, employers of H-1B workers (this also applies to H-1B1 and E-3) are required to maintain a Public Access File (PAF).

Creation and Access to the PAF

An employer is required to make a filed Labor Condition Application (LCA) and supporting documentation available for public inspection at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed 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. 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).
2. Documentation that 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.
3. 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) by the employer, the PAF must contain a clear explanation of the system that the employer used to set the actual wage the employer has paid or will pay workers. 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.

4. 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 https://flcdatacenter.com/. Also recommended is to include the printout from O*Net which specifies the relevant SOC Code: https://www.onetonline.org/.

5. LCA Posting Notice: Another important document to be retained in the PAF is the 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 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. Proof of posting such as a photograph should be included where possible.

If the H-1B worker is not working at the original location and is working at a new location within the same MSA the original LCA needs to be posted at the new location.  The following documents should be maintained in these circumstances:

1. 1. Proof of posting;
   2. Letter from Employer confirming a move to a new location within the same MSA and confirming posting dates; and
   3. Copy of USCIS guidance- https://www.uscis.gov/archive/uscis-draft-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision.

6. 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.

 

7. Documentation regarding a change in the 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.

 

8. 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.

 

Records Retention Requirements

Employers must keep the PAF for a period of one year beyond the date of employment under the LCA. If no foreign national was employed under the LCA, the PAF documentation must be kept for one year from the expiration of the LCA, or for one year from the withdrawal of the LCA.

The failure to maintain the PAF can lead to penalties and these are distinct from any penalties that may be assessed for failing to comply with the LCA requirements.

Additional record requirements for H-1B-dependent or willful violator employers make available to the public?

An employer is considered to be H-1B-dependent if it has:

• 25 or fewer full-time equivalent employees and at least 8 H-1B nonimmigrant workers; or
• 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
• 51 or more full-time equivalent employees of whom 15% or more are H-1B nonimmigrant workers.

The following additional records must be maintained:

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:

A letter signed by the employer confirming they provided the LCA, signed by the employer and the employee acknowledging that they received it should be kept, however this letter should be kept in the employee’s personnel file and not in the PAF.

Employers should keep all of the PAFs separate from the personnel files. PAFs should be kept in one place to facilitate inspection in case of a DOL visit. No personal records should be included in the PAF to safeguard the employee’s privacy. It is recommended that employers assign a number to each PAF and then keep a separate 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. Max penalty of $1,928.00 for violations related to LCA posting notice requirements, misrepresentation on LCA, early termination penalties, payment of H-1B fees by employees or public access violations etc.
2. Max penalty of $7,846.00 for violations to include willful failure to pay LCA wages, LCA posting notice requirements, willful misrepresentation on LCA, discrimination against an employee etc.
3. Max penalty of $54,921.00 for willful violation resulting in a displacement of a US worker as a result of the above violations.

In addition to the above penalties, WH may also require an employer to make a payment for back wages. Employers found to have committed certain violations may also be precluded from future access to the H-1B program (debarment) and other immigrant programs for a period of at least one year.

For further details see:

https://www.dol.gov/agencies/whd/immigration/h1b#cmp

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.