H-1B Public Access File Compliance for Employers
As the 2021 H-1B preparation season is upon us, employers considering sponsoring H-1B workers are reminded of their Public Access File compliance obligations.
Overview of Public Access File Requirement
Department of Labor regulations state that all employers who are sponsoring an H-1B worker should maintain certain documents related to the worker in a Public Access File (“PAF”) which the employer must provide if requested. The regulations require that the PAF be kept either at the employee’s actual place of labor or the employer’s principal place of business. The obligation to maintain the PAF starts within one business day of the pre-H-1B petition filing of the Labor Condition Application (“LCA”).
The PAF should generally be retained by the employer for one year beyond the period listed in the LCA. Payroll records pertaining to the employee should also be retained at least for three years from LCA filing. The PAF must also contain reference to the actual pay rate of the employee and a description of any increases or decreases in pay. In the event of changes to the employer’s corporate structure—such as a merger or acquisition—the PAF must be updated to include an acquisition memorandum regarding assumption of the H-1B employee’s immigration liabilities.
Documents the Public Access File Must Contain
- A copy of the signed and certified LCA, including any cover pages;
- Proof of the source of the prevailing wage for the position—typically, this consists of the printout from a page in DOL’s website listing the wage for the proffered position’s occupational classification;
- Documentation clearly indicating the wage rate to be paid to the worker and a memorandum indicating the actual wage paid;
- A copy of the posted or electronic Notice given to other employees (or the union rep., if applicable) about the position; and
- A summary of the benefits offered to US workers in the same job category as the H-1B worker, if applicable.
As this year’s H-1B preparation season begins, H-1B employers are reminded to speak with their attorneys about the related PAF compliance rules, which take effect months before the H-1B employee begins work.
Jan. 28, 2021 update: Work Authorization for qualifying spouses in H-4 Status continues to be permitted. On Jan. 25, 2021 newly appointed President Biden president withdrew a proposal to disallow dependents of H-1B holders on H-4 visas to work in the U.S. Further information available here.