Creating and Maintaining your H-1B Public Access File | KNG Law

Under  20 CFR §655.760(a), within one business day of filing the Labor Condition Application (LCA), all H-1B employers must make certain H-1B public records available to the public at the employer’s principal place of business or place of H-1B employment.

This public record holds the LCA and supporting documentation, often known as a public access file (PAF). While the H-1B employer does not have to provide copies to the public, it must grant the public access to the file or any documents upon request.

 

PAF Requirements

The Department of Labor requires the public access file to include the following per 20 CFR 655.760:

1. LCA Copy: The copy or printout of the signed LCA;

2. Rate of pay for the H-1B worker;

3. A full, clear summary of the actual wage system;

4. Prevailing wage rate and its source;

5. Documentation that the LCA posting notice requirement was satisfied;

6. Summary of benefits offered to U.S. workers and H-1B workers in same occupation.

 

Any H-1B dependent are required to provide these additional public records:

1. List of “exempt” H-1B nonimmigrant workers; and

2. Summary of recruitment methods and time frames, if employer hired any “non-exempt” H-1B nonimmigrant workers.

 

PAF Retention & Maintenance

The public access file must be retained for one year from:

1.     Last date of any H-1B workers employment under the LCA, or

2.     If no H-1B workers were employed, then from the expiration or withdrawl date of LCA.

A separate payroll record(s) of all employees (H-1B and non-H-1B) for the occupation must be retained for 3 years from the date when the records were created, but shall enforcement proceedings commence, the records shall be retained until proceedings are completed.

 

Consequences of Non-Compliance

Federal regulation 20 CFR § 655.810 grants an Administrator of the Wage and Hour Division, Employment Standards Administration with the Department of Labor (DOL), or such authorized representative to investigate the failure to comply with the PAF requirement and determine whether there has been a violation.

Common PAF violations include: (1) not creating the PAF within 1 working day of submitting the LCA; (2) not posting the LCA as required or documenting LCA postings; (3) providing incomplete information in the PAF; or (4) providing inaccurate information in the PAF.

When the failure to provide the PAF has impeded an Administrator’s ability to investigate, has impeded the public from attaining information regarding the LCA and H-1B employment, penalties could include civil money penalties for an amount up to $1,848.00 or  $7,520, per violation. The amount for the penalty changes depending on the type and nature of compliance violation.

The penalty fee amount is determined by the Administrator through consideration of different factors, including: seriousness of the violation, violation history, good faith efforts, and employer explanations of noncompliance.

Overall, the PAF is an important requirement of the Department of Labor that must be created within 1 working day of LCA submission, and requires some attention and maintenance to ensure full compliance.

 

By Jasmine Rios | Immigration Paralegal/Law Clerk and Kaitlyn Garcia | Immigration Attorney 

Jasmine Rios (J.D. Candidate, 2020)  is a paralegal and law clerk with KNG Law in Houston, Texas. Jasmine focuses on supporting the firm's employment-based immigration matters. Kaitlyn is Founder and Managing Attorney and handles the firm's H-1B and other employment-based immigration matters.