Six Things Every H1B Employer Must Include in Its Public Access Files24 Apr 2017
It is no secret that the Trump Administration aims to ratchet up compliance and enforcement efforts against H1B employers. This makes it all the more important for companies that employ H1B workers to ensure that they are properly creating and maintaining their public access files (PAFs).
Public Access Files: Creation and Access
Any employer that files a labor condition application (LCA) for an H1B (or H1B1 or E-3) worker must maintain a PAF for that foreign national. This file must be made available to any potentially interested or affected parties, including representatives from the U.S. Department of Labor (DOL), who randomly audit these files.
The petitioning employer must complete the PAF and make it publicly available for inspection within one day of the filing of the LCA. The employer must maintain the public access file for one year past the final date any foreign national is employed pursuant to the LCA. Or, if no workers were ever employed pursuant to that LCA, the PAF must be kept for at least one year from the date the LCA expired or was withdrawn.
Documentation That Must Be Included
Every employer of an H1B employee must maintain the following documentation in each PAF:
Signed Copy of the Certified LCA
The PAF must contain a signed copy of the certified LCA. The LCA, once certified, will be signed by the DOL certifying officer and then must be signed by the authorized signatory for the employer.
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.
Explanation of Wage Determination
The public access file must contain a complete and unambiguous explanation of how the actual wage for the position was set. An explanation for how future salary increases will be calculated should also be included. The evidence for the wage determination is typically provided in the form of a memorandum that summarizes the system used.
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.
The public access file must include evidence that the notification requirements have been met. This means the file must include proof of the notice posted at the worksite or, if appropriate, to the collective bargaining representative.
The PAF must include a benefits memorandum, which details the benefits offered by the employer to its workers. H1B workers must be provided the same employment benefits offered to U.S. workers. So, the memo should summarize the benefits offered to its employees, such as bonuses, paid vacations, insurance plans, and stock options.
Requirements for Employers after Corporate Restructuring
In addition to the aforementioned items that must be included in all PAFs, there is an evidentiary requirement that generally must be met following a corporate restructuring. In such instances, the employer must add a sworn statement by the responsible official of the new entity. In addition to the statement, the employer must add a list of every affected LCA as well as the FEIN of the new entity and an explanation of its wage system.
Requirements for H1B Dependent Employers and Willful Violators
H1B dependent employers and willful violators are subject to yet more PAF requirements. If the employer has indicated an employee is exempt, it must include a list of all exempt employees. Additionally, the PAF must contain a summary of the recruitment methods used and the details of that recruitment.
Failure to comply with any or all of the PAF requirements can lead to severe consequences. In addition to the potential direct penalties for violating the PAF requirements, this can also trigger further civil and/or criminal investigations from other government entities involved in the H1B process. Employers should make it a practice to regularly review and update all public access files to ensure that all the information is complete and up to date.
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