Public access files​

There are different files that need to be made public when going through the H1-B visa process.

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Is having or applying for H-1B workers public knowledge?

The hiring of an H-1B non-immigrant worker is a considerably public ordeal. Not only are certain aspects required to be public, but an employer can face severe monetary penalties and even the possibility of debarment from the H-1B program if he does not comply with the program’s requirements. In order to be compliant with the DOL’s rules, an H-1B employer must have different documents available for different people.  The employer will have to maintain records and notices for the H-1B worker, for the U.S. worker, for the government, and even for the public.  Some will have to be put on display, whereas others need to be kept for situations in which the documents are requested.

What records must an H-1B employer make available to the public?

Within one day of filing the Labor Condition Application (LCA), there is a list of materials that needs to be made available to the public in something that is informally called the “public access file” (PAF).

  • The LCA itself must be made available.
  • The rate of pay for said employee(s), the description or summary of actual wage system, prevailing wage rate and its source, and summary of benefits offered to U.S. and H-1B workers alike.
  • One must also have the proper documentation proving that the notice requirement has been fulfilled.
  • List of entities included as a “single employer”.
  • In the event of corporate change, an employer must make available to the public:
  • A sworn or notarized statement from the succeeding entity accepting all liabilities that its predecessor had;
  • A list of the H-1B workers transferred to successor;
  • Each affected LCA number and effective date;
  • A description of successor’s actual wage system; and
  • The successor entity’s employer ID number.

Are there any additional documents that need to be made available?

Yes; for H-1B-dependent or willful violator employers, a list of exempt H-1B nonimmigrant workers, and a summary of recruiting methods must be made available for public access.

Maintaining the Public Access File

The employer does not have to publicly make the PAF available. The reason it should be maintained is that IF a member of the public would request access to the PAF as a whole or any of its pieces, the employer must be able to produce the documents as requested. The person requesting may keep these files through means such as, but not limited to, transcription, scanning, photography, etc. Whether willing or accidental, failure to properly maintain the PAF can result in penalties of both money and/or debarment from the H-1B program.

What records need to be maintained by the employer for public inspection, if requested?

Employers of any H-1B nonimmigrant worker(s) are required to maintain the filed LCA and its supporting documentation available for public inspection in what is called a Public Access File (or PAF for short).  This must include:

  • A copy of the certified LCA including its cover pages.
  • Documents that provide the wage rate paid to its H-1B workers.
  • The methods used to establish the actual wage system, including any periodic increases which the system may provide.
  • The prevailing wage rate and a general description of the methodology of its source.
  • Documents proving the satisfaction of the union and employee notification requirements.
  • A summary of the benefits provided to U.S. and H-1B workers.
  • When the employer utilizes the definition of “single employer” in the Internal Revenue Code, it must provide a list of any entities included as part of the single employer, re. making a determination as to its H-1B-dependent status.

What happens if we switch companies, is there any different or new records that need to be kept?

Yes, in the event of a corporate change, an employer must maintain and make available to the public certain additional documents:

  • A sworn or notarized statement from the succeeding company accepting all liabilities that its predecessor had.
  • A list of the H-1B workers transferred to successor.
  • Each affected LCA number and effective date.
  • A description of successor’s actual wage system.
  • The successor entity’s employer ID number (EIN).

Are there any additional documents for employers who are H-1B-dependent or willful violators?

Yes, there are three additional documents that an H-1B-dependent and willful violator must maintain. They must:

  • Keep a list of “exempt” H-1B nonimmigrants when the LCA’s are stating only such exempt workers will be employed.
  • A summary of the recruitment methods if the employer hired any non-exempt H-1B workers.
  • Keep the required documentation proving the employer’s compliance with the U.S. worker non-displacement obligation.

Are there any additional records an H-1B employer must maintain other than the ones listed above?

Yes, there is actually a set amount of documents specifically pertaining to payroll records that must be maintained for the exclusive request of the Wage and Hour Division of the U.S. Department of Labor. These records must contain the following information:

  • Name, address, occupation, and social security number for all H-1B and U.S. workers employed in the same occupation at the place of employment.
  • The rate of pay, hours worked (if hourly or part-time), gross pay, deductions, and net pay for all H-1B and U.S. workers employed in the same occupation at the place of employment.
  • The hours worked each day and week by the employee IF the employee is either paid on something other than a salary basis or with respect solely to H-1B workers, if the worker is a part-time employee.
  • The benefit plan(s) offered and provided.

In addition to the payroll documents, the Public Access File listed above can also be requested by the Wage and Hour Division.

 

How long must these records be maintained for?

For the Public Access File (PAF), the files must be kept available for one year beyond the end of the employment period specified on the LCA. For the payroll records, the files must be kept for a period of three years from the date of the creation of said records. [These files may need to be maintained longer if there is an enforcement proceeding in effect.]

Both the PAF and payroll records must be kept and made available at the employer’s principal place of business in the United States or at the place of employment of the workers in the H-1B program.

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