Six Things Every H1B Employer Must Include in Their Public Access Files3 min read
Any company that utilizes an H1B employer is obligated to create and maintain a public access file (PAF) for every worker in H1B status. The following is a general overview of some of the key documents that should be found in PAFs.
Public Access Files: Creation and Access | H1B Employer
Any employer that files a labor condition application (LCA) for an H1B (or H1B1 or E-3) worker should maintain a PAF for that foreign national. This file should be made available to any potentially interested or affected parties, including representatives from the U.S. Department of Labor (DOL), who randomly audited these files.
The petitioning employer should finish the PAF and make it publicly available for inspection within one day of the filing of the LCA. The employer must maintain the public access file for one year past the final date any foreign national is employed pursuant to the LCA. Or, if no workers were ever employed pursuant to that LCA, the PAF should be saved for no less than one year from the date the LCA expired or was withdrawn.
Documentation That Must Be Included
Every employer of an H1B employee should maintain the following documentation in each PAF:
Signed Copy of the Certified LCA
The PAF should contain a signed copy of the certified LCA. The LCA, once certified, will be signed by the DOL certifying officer and then should be signed by the approved signatory for the employer.
Wage Rate Documentation
The PAF should include documentation demonstrating the wage rate to be paid to the foreign national employee. Depending on the circumstances, this requirement might be satisfied by the LCA. If not, a signed letter or statement from the employer attesting to the wage it intends to pay may suffice.
Explanation of Wage Determination
The public access file should contain a complete and unambiguous explanation of how the actual wage for the position was set. A clarification of how future salary increases will be calculated should also be included. The evidence for the wage determination typically is given in the form of a memorandum that summarizes the system used.
Prevailing Wage Documentation
The employer should also keep a duplicate of the documentation used to determine the prevailing wage in the PAF This can be accomplished with the inclusion of an explanation of the source and methodology used.
The public access file should include proof that the notification requirements have been met. Moreover, this implies that the file should include proof of the notification posted at the worksite or if appropriate, to the collective bargaining representative.
The PAF should include a benefit memorandum, which details the benefits offered by the employer to its workers. H1B workers should be provided the same employment benefits offered to U.S. workers. So, the memo should summarize the benefits offered to its employees, such as bonuses, paid vacations, insurance plans, and stock options.
Requirements for H1B Employer after Corporate Restructuring
In addition to the aforementioned items that must be included in all PAFs. An evidentiary requirement should generally be met following a corporate rebuilding. In such instances, the employer should add a sworn statement by the responsible official of the new entity. Also, to the statement, the employer should add a list of every affected LCA. As well as the FEIN of the new entity and an explanation of its wage system.
[Humanitarian Reinstatement Following Death of Petitioning Relative]
Requirements for H1B Dependent Employers and Willful Violators
H1B dependent employers and willful violators are subject to yet more PAF requirements. If the employer has shown an employee is exempt, it should include a list of all exempt employees. Moreover, the PAF should contain a summary of the recruitment methods used and the details of that recruitment.
Failure to comply with any or all of the PAF requirements can lead to severe consequences. In addition to the potential direct penalties for violating the PAF requirements. This can also trigger further civil and/or criminal investigations from other government entities involved in the H1B process. Employers should make it a practice to regularly review and update all public access files. To ensure that all information is complete and up to date.