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What is an H-1B Public Access File? Questions and Answers

By February 9, 2021March 19th, 2021H-1B and E-3 Visa, Immigration
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What is a Public Access File?

H-1B visa is a highly regulated visa and an H-1B employer has a lot of obligations he/she has to comply with. One of such obligations is to keep a Public Access File (“PAF”). This means, that an H-1B employer must keep certain records in this file and make them available to public.

Where does the employer have to keep this file?

The file should be kept at either the employer’s principal place of business or at the place of H- B employee’s employment.

Example:

The Company’s principal place of business is in New York, but the employee will be working at the company’s LA office. The PAF can be kept either in the NY or LA office.

We usually recommend that you keep a hard copy of the PAF file – you should print the documents and keep them in a folder either at the principal place of business or at the place of H-1B employee’s employment.

What documents must be kept in the Public Access File?

  • LCA that was certified by the Department of Labor (“DOL”). The certified copy should be signed by an employer;
  • Documentation the provides the wage that is being paid to the H-1B employee;
  • Documentation that explains the system the H-1B employer used to set the actual wage the employer has paid/will pay worker in the occupation for which the H-1B employee is being employed;
  • Documentation that explains how the employer established the prevailing wage for the occupation;
  • Documentation showing that the employer satisfied the “notice requirement” ;
  • Summary of the benefits that are being offered to U.S. workers in the same occupation as the H-1B employee in your company.

Please note that there are additional requirements if the employer is H-1B dependent or willful violator. Additionally, if the H-1B company changes ownership structure, there are some additional documents that will need to be added to the PAF.

Please also note that if the H-1B employee’s wage increases, this should be documented in the Public Access File as well.

What is the Notice Requirement?

An H-1B employer that wants to employ an H-1B employee has to provide a notice of the filing of Labor Condition application to the bargaining representative and if there is no bargaining representative, the employer has to post the Notice of Filing in two conspicuous locations in the employer’s establishments in the area of the intended employment/or by providing an electronic notice.

When should the file be created?

The file should be kept together within 1 business day after the LCA was filed with the Department of Labor.

For how long must the PAF be kept?

The employer should keep the PAF for a period of one year beyond the last date of H-1B employee’s employment. If you did end up employing the H-1B  employee under the LCA, then the files has to be kept one year from the date the LCA expired or was withdrawn.

Why is it important to keep the PAF?

Maintaining the proper documents in the PAF is extremely important to comply with the H-1B regulations. Additionally, the Department of Labor’s Wage and Hour division often conducts audits and as a part of audit also checks if the employer is maintaining proper documents in the public access file.

Please see our blog post on H-1B employer’s obligations one the employment ends when you click here.

Please click here  to read more about the H-B application process.

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