Employer Public Access File Requirements for H1B, H1B1 and E-3 Workers17 Jun 2011
Employers of foreign nationals holding H1B, H1B1, and E-3 statuses are held to certain requirements stemming from the underlying labor condition applications (LCAs) filed with the U.S. Department of Labor (DOL). One such requirement is to maintain a file that is available for public inspection. This is referred to as the public access file (PAF). This article discusses the requirements of the PAF, which is a vital component of employment-related immigration compliance. In our experience, many employers could benefit from focusing additional attention on the contents of their PAFs to ensure that the files are complete and fully compliant with the law. Accordingly, an outline of the obligations of such employers is provided here for the benefit of MurthyDotCom and MurthyBulletin readers.
Public Access Files: Creation and Access
The PAF is the file that an employer must create and maintain for each H1B, H1B1, and E-3 employee. (The E-3 nonimmigrant category for Australians should not be confused with the EB3 immigrant, “green card” category.) This file must be created, within one working day of the LCA filing. It must be available for public inspection, as well as inspection by the DOL, either at the employer’s principal place of business or the actual location of employment.
Contents of the Public Access File
The PAF must contain a copy of the certified LCA and the related cover pages. For LCAs that were electronically submitted (as is standard practice), the printout must be signed by the employer. The PAF must contain supporting documentation related to the contents of the LCA.
One key component of the LCA is the wage rate. In order to document that the worker will be paid the higher of either the prevailing wage or the actual wage by the employer, the PAF must contain a clear explanation of the system that the employer used to set the actual wage the employer has paid or will pay workers. This is generally in the form of a memorandum summarizing the employer’s pay system or scale. (The actual wage is the wage normally paid to other similar employees by the employer.) The PAF must also document the appropriate prevailing wage for the occupation, and the source of that wage.
Since it is necessary to provide benefits to foreign workers covered by LCAs at the same level as those provided to U.S. workers, the PAF must include a summary of the benefits offered to U.S. workers in the same occupational classification as the nonimmigrant worker. There must be a statement as to how any variations in benefits are determined.
Proof of Notification
Another important document to be retained in the PAF is the proof of notification to employees or the union representative (if any). The absence of appropriate posting of notification at the location of intended employment is a common LCA violation that can have serious consequences in the event of a DOL investigation.
Other Legal Requirements
There are additional legal requirements for employers who are either H1B dependent or who have been found to be willful violators of the LCA requirements. The PAFs of these employers must contain specific proof of their efforts to recruit U.S. workers, if required. This recruitment is not a standard H1B requirement; it is an additional requirement for a limited group of employers.
The petitioning employer must keep the PAF for a period of one year beyond the date of employment under the LCA. If no foreign national was employed under the LCA, the PAF documentation must be kept for one year from the expiration of the LCA, or for one year from the withdrawal of the LCA. This requirement only pertains to the PAF documents. There are separate requirements for retention of payroll records that are outside the scope of this Murthy NewsBrief.
It is important for employers to comply with the PAF requirements. In the event of an audit, there are potential penalties for failure to maintain the PAF. These are separate from any penalties that may be assessed for failure to demonstrate compliance with the LCA requirements. Employers who have concerns about whether their PAFs are complete and proper should speak with a qualified immigration attorney. In these situations, it is often best to arrange for an internal audit. This allows employers to identify and, to the extent possible, address any omissions before the DOL investigates. Even if the DOL finds violations, an employer’s good-faith efforts to rectify past problems and ensure future compliance can help to reduce the level of penalties assessed.
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