October 10, 2019
Public Access File – A Crucial Piece of Immigration Compliance
All U.S. employers that sponsor an H-1B foreign worker are required to maintain certain documents related to the worker in a Public Access File (“PAF”) which is to be kept either at the employee’s actual place of work or the employer’s principal place of business. The PAF is an important element of employment related immigration compliance and should be made available by the employer for public inspection.
PAF is required to be created within one working day of the filing of the Labor Condition Application (LCA), an important step in the filing of the H-1B petition process. A PAF must contain a copy of the completed LCA; if the LCA is filed electronically, the original signed LCA should be retained. Further, a PAF should have documentation showing the wage rate paid to the H‑1B worker, a full and clear explanation of the system the employer used to set the “actual wage” and the “prevailing wage” respectively, a summary statement of benefits offered to U.S. workers and H-1B workers and a copy of the posted or electronic Notice given to other employees (or the union representative, if applicable) about the job position.
Department of Labor officials may conduct on-site inspections at any time to review employer’s PAFs. Failure to maintain these public access files can result in civil penalties, back wage orders, and even debarment from the H-1B program. Employers should conduct periodic internal audits to ensure that all requirements have been fully met. PAFs should ideally be stored separately from other immigration documentation and should generally be retained by the employer for one year beyond the period listed in the LCA. After one year, PAFS should be shredded or electronically deleted in order to avoid any mix ups that could result in a fine.
Zeenat Phophalia, Esq., Senior Associate