H-1B Practice Alert – Generating and Maintaining the Public Access File

As many immigration practitioners are painfully aware, the H-1B cap filing season can be a very punishing ordeal which involves the collection of numerous data points, the analysis of job and wage requirements, and the management of client expectations (to name just a few).  Along the way, practitioners will generate the required forms, letters, and documentation necessary for filing with the USCIS and then hope for the best.

But underneath all of this “filing” paperwork lies an extremely important requirement for H-1B employers – the maintenance of the public access file as required by the Department of Labor regulations. The generation of this public access file (or “PAF” for short) may seem like just another documentation requirement – a ‘check the box’ step along the way to filing the petition. But as employers (and practitioners) prepare for the potential of increasing employer audits under the Trump administration to “investigate all abuses of visa programs” (see video at 1:56), it’s super important to carefully review the PAF requirements and develop procedures and processes to ensure consistency and accuracy.

A Review of the PAF Requirement

The provisions at 20 CFR §655.760 indicate that employers of H-1B, H-1B1, and E-3 nonimmigrants must make the following documents available for public inspection at the employer’s principal place of business or at the place of employment within one day after the date of submission of the LCA to the Department of Labor. This includes the following:

  • Copy of the certified LCA and cover pages
  • Documentation which provides the wage rate to be paid
  • Explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation
  • Documentation the employer used to establish the “prevailing wage” for the occupation
  • Document(s) demonstrating compliance with union/employee notification requirements
  • Summary of benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants

In addition, if the employer undergoes a change in corporate structure, the employer must also maintain the following:

  • Sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity
  • List of each affected LCA and its date of certification
  • Description of the actual wage system for the new employer entity
  • FEIN of the new employing entity

Last but not least, there are additional documentation requirements for employers who are considered H-1B dependent or willful violators, including the following:

  • List of “exempt” H-1B nonimmigrants
  • Summary of recruitment methods, if employer hired any “non-exempt” H-1B workers

Employers must also take note of the specific retention requirements relating to the PAF – an especially important consideration when preparing for an audit. Under the regulations, an employer must retain copies of these records for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed, one year from the date the LCA expired or was withdrawn. In addition, the employer must maintain required payroll records for a period of three years from the date(s) of the creation of the record(s) – these should be kept separate from the PAF.

Common Mistakes in Maintaining PAFs

The following are a few examples of common mistakes in documenting and maintaining the PAF (as seen in various DOL Wage & Hour cases):

  • Copy of certified LCA never makes its way into the file
  • No evidence or statement with regards to the “actual wage” paid to individuals at the worksite with similar experience and qualifications
  • Lacks documentation necessary to determine the prevailing wage rate (e.g., no job description)
  • Position description does not match the wage level set by the employer
  • No evidence that the employer has posted the required US worker notifications

Digital Copies of PAF Allowed?

Recently, the AILA DOL Liaison committee asked the DOL’s Office of Foreign Labor Certification (OFLC) to confirm whether an employer can maintain an “electronic” (or digital) version of the PAF and still satisfy the regulatory requirements which call for the employer to maintain the “original LCA” in the file.

In response, the OFLC indicated that it did not have any particular concerns over maintenance of the PAF electronically, as the regulations note that only a copy of the LCA must be made available to interested parties, and presumably, an electronic PAF would allow this requirement to be met. Later, the DOL’s Wage & Hour division confirmed that an employer can maintain a scanned copy of the signed LCA (i.e., no requirement to maintain a hard copy of the original signed LCA).

AILA members can review the various back and forth discussions on this issue by looking up the following AILA/DOL Liaison summaries:

  • March 7, 2017 (AILA Doc. No. 17031303)
  • September 12, 2016 (AILA Doc. No. 16092205)
  • May 24, 2016 (AILA Doc. No. 16062232)

Case Management Tips

Now more than ever, immigration practitioners must be diligent in communicating the PAF requirements to their H-1B employers in order to avoid potential problems and issues down the road. In addition, practitioners who routinely prepare the PAF file (or “packet”) for their employer clients should strongly consider using an immigration case management application which standardizes the various components and ensures adherence to the requirements listed above.

A well-designed system will enable you to do the following:

  • Create a standardized H-1B PAF document which can be automatically populated from your database with the relevant information pertaining to the case at hand (e.g., name of employer, occupation, wage or wage range, number of workers in the LCA, etc.)
  • Keep track of the various LCA and PAF steps for each H-1B case, including the determination of the actual and prevailing wage rates; the sending of the posting notices or LCA to the employer; and the date upon which the LCA is filed and certified (to name just a few)
  • Create templated emails or letters to be sent to the employer which explain the PAF requirement and the necessary documentation that the employer must maintain
  • Enable the employer client to access and download the various PAF documents through a secure online portal which also provides them with case status updates
  • Generate reports of H-1B, H-1B1, and E-3 employees as needed to assist the employer client in a periodic LCA audit

Want more information on using an online case management system to prepare H-1B petitions? Please contact us today to learn about the Edge solution from LawLogix.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.