Employers who sponsor employees in the H-1B, H-1B1 and E-3 visa categories are required to maintain a Public Access File (PAF) for each employee. As the name suggests, all PAFs must be made available for the public to review upon request. The PAFs have to be ready within one working day of filing the Labor Condition Application (LCA)
Before filing a petition to the USCIS, all employers must obtain a Labor Condition Application (LCA) from the Department of Labor (DOL). The employers are not required to provide copies of documents to the public requesting access. However, they must be allowed to capture the information through such means as transcription, scanning, or taking photographs. These Public Access Files (PAF) must then be retained for a period of one year after the employment is terminated or one year after the LCA expires.
There are a few items listed under 20 C.F.R. [655.700(b)(1)(1)] that an employer should include in the Public Access Files for nonimmigrant employees. These should be available for inspection at the principal place of business or the place of employment.
Documents required for the Public Access Files:
- Labor Condition Application- Employers need to provide a copy of the certified LCA in the PAF .
- Wage Rate Documentation-The PAF must include documentation demonstrating the wage rate to be paid to the foreign national employee. Depending on the circumstances, this requirement may be satisfied by the LCA. If not, a signed letter or statement from the employer attesting to the wage it intends to pay may suffice.
- Prevailing Wage Documentation-The employer must also keep a copy of the documentation used to determine the prevailing wage in the PAF. This can be accomplished with the inclusion of an explanation of the source and methodology used.
- Advert Documentation- The PAF must include evidence that the advert requirements have been met. This means that the file must include proof of the notice posted at the worksite or, if appropriate, to the collective bargaining representative.
- Benefits Memorandum- The PAF must include a benefits memorandum, which details the benefits offered by the employer to its workers. H1B workers must be provided with the same employment benefits as U.S. workers.
What Not to Include in Public Access Files?
It’s recommended not to include these items in the PAFs:
- A complete copy of the H-1B petition;
- Company Financials;
- Confidential Employee Information includes academic records, employment history, and disciplinary records.
It is suggested that the employer retains the PAFs, separately from the personnel files of the nonimmigrant employees.
Retention and Storage requirements:
The PAFs should generally be removed one year from the end of the period covered by the Form ETA-9035, Labor Condition Application (LCA), or an LCA withdrawal. It’s suggested that employers should not retain PAFs longer than the regulations requires. PAFs saved beyond the retention period could cause unnecessary liabilities if they contain errors or mistakes. Moreover, the employers must maintain required payroll records for three years from the date(s) of the creation of the record(s).
Employers should ensure consistency regardless of the storage. However, some experts advise employers to print, sign, and retain a physical copy of the LCA containing the original signature, after the DOL has been approved.
DOL audits of PAFs
The DOL’s Wage and Hour Division (WHD) ensures that H-1B petitioners comply with the LCA wage obligation attestations and keep accurate PAFs. Employers should keep in mind that the U.S. Department of Labor (DOL) can audit employers at any time, although the most common reason for an audit is a complaint from an employee.
Employers in low-wage industries have also been targeted by the DOL for wage and hour violations, particularly in agriculture, daycare, food service, garment manufacture, guard services, health care, hotels and motels, janitorial services, and temporary help. Employers will be better prepared for a DOL audit if they understand the audit process and follow the advice provided below.
- The DOL typically provides little advance notice of an audit. However, the employer can request time to gather records. Typically, the amount of time an employer has will be determined by the auditor.
- Employers are designated with one or two company representatives to work with the auditor. It is an excellent practice to provide a quiet area for the auditor to work in. If violations are found, employers are encouraged to consult legal counsel before any settlements are reached with the DOL.
During an audit by the DOL, a list of every H-1B nonimmigrant worker employed during the period under investigation and a report with copies of supporting documents of the following information for each worker listed should be made ready for inspection:
- The LCA that was included as part of the H-1B visa application;
- Actual hours of work, the actual rate of pay and gross earnings received, copy of payroll;
- An explanation of the deductions made from their weekly wages or any unpaid periods including the supporting documentation (i.e. vacation requests, personnel memos, written authorizations, etc.);
- Each work site where work was performed each week (Site, City, State) and the period of employment at each site;
- The dates of entry into the U.S.; hire/termination; work commencement; payroll commencement;
- Copies of any termination notice to U.S. Citizenship Immigration Services (USCIS) and the USCIS response;
- The current or last known address and contact number;
- A copy of each Petition for Nonimmigrant Worker and subsequent USCIS Approval Form for each H-1B worker employed during the designated period;
- Lastly, any liquidated damages or penalties sought or collected from H-1B workers, including relevant contracts, demands, lawsuits, and settlement agreements.