04.01.2017

H-1B Employers Must Properly Maintain the Public Access File

It is a scenario that happens repeatedly.  An employer of H-1B workers is subject to an audit by the United States Department of Labor (“USDOL”). As is customary, the USDOL requests access to the employer’s Public Access File (“PAF”); however, the employer was not aware that such a file must be maintained under the H-1B program.

Employers of foreign nationals holding an H-1B visa are required to maintain the PAF for public inspection at the employer’s principal place of business in the U.S. or at the place of employment of the H-1B workers. Specifically, the following documentation for each H-1B worker must be made available to the public within one (1) working day of filing the Labor Condition Application (“LCA”) with the USDOL:

  1. The original signed LCA including all instructional cover pages;
  2. Documentation which provides the wage rate to be paid to each H-1B employee;
  3. Prevailing wage documentation (copy of the wage survey);
  4. An actual wage memorandum which describes the system used to establish the wage paid to each H-1B worker, including a schedule of periodic increases;
  5. A benefits memorandum detailing benefits offered to U.S. workers in the same occupation as that in which the H-1B worker is engaged;
  6. A statement acknowledging the employer’s compliance with the LCA posting requirements for each H-1B employee;
  7. A list of entities included as the “single employer”; and
  8. Information regarding any corporate changes, including a sworn statement that the all obligations of the prior employer have assumed.

Employers who are H-1B dependent must also include the following in the Public Access File:

  1. A list of all exempt H-1B workers
  2. Documentation of good faith and industry standard effort at recruiting U.S. workers.

The PAF documentation is required to be maintained for each H-1B worker for a period of one (1) year beyond the last date on which the H-1B worker is employed under the LCA. If no H-1B worker was employed after the LCA application was submitted, the retention period is one (1) year from the date the LCA expired or was withdrawn.

Employers are not required to provide copies of any documents included in the PAF to the public. However, any person requesting access to the PAF must be allowed to reproduce the information through transcription, scanning, or taking photographs.

An employer’s failure to properly maintain the PAF could result in civil penalties as well as debarment from the H-1B program.