It seems that immigration policy and enforcement is always in flux. Not knowing when the next changes are coming, People teams often find themselves in a tight spot—managing current immigration compliance while trying to anticipate changes to come.
A top concern among People teams who sponsor international talent? LCA Compliance.
Even with laws, regulations, and enforcement consistently shifting, People teams should keep internal immigration processes at the top of their to-do lists, helping to reduce risk of non-compliance. After all, no employer wants to deal with the threat of a governmental audit.
In this article, we will explore the in’s and out’s of a public access file and why it is critical to create a consistent and well-documented process.
What is a Public Access File?
A public access file (PAF) is a file that employers must create and maintain when hiring H-1B, H-1B1, or E-3 temporary workers. Suppose you are hiring H-1B international workers, for example. In that case, the employer must make its PAF available to the public within one business day after filing the Labor Condition Application (LCA) with the DOL. In addition, employers must continue to maintain this PAF for one year after the final day that the international employee is employed.
Additionally, this file must be made available for inspection to any potentially interested parties, including DOL auditors, who may request a copy of the file without identifying themselves as DOL auditors. Denying access to the file can result in civil penalties. Pretty scary.
Although this definition looks pretty straightforward, what we need to concern ourselves with more is the process of maintaining the public access file. As many companies do not keep PAFs, where others do, but struggle with a cumbersome and inconsistent process, understanding PAF management is critical to compliant management of your international employees.
How to Maintain a Public Access File
As preparation is key, take a look at three steps to take when creating a public access file.
Step 1: Know what needs to be included
When deciding what to place in your PAF file, the DOL gives you a checklist. This checklist is mandatory—it highlights everything you need to include in your PAF file to comply with federal regulations.
Documents required for review include:
- A copy of the signed and certified LCA, along with all cover pages
- Documentation providing the worker’s wage rate
- An explanation of how the “actual wage” was determined
- An explanation of how the “prevailing wage” was determined
- Documentation regarding union notification requirements
- A summary of benefits offered to U.S. workers in the same occupational classification as the international employee
- If the company has a corporate change, the:
- Documentation stating that if the company experiences a change in ownership or corporate structure, that the resulting entity will fulfill its obligations regarding any LCAs
- List of each affected LCA
- A description of the successor company’s wage system, similar to the above
- The successor company’s federal employer identification number (EIN)
- As defined in the Internal Revenue Code, if the employer is a “single employer,” list any entities included when determining its H-1B international employee status.
- If the employer is H-1B dependent and/or is a willful violator, and the employer indicates that only H-1B exempt workers are employed, then list all of those workers.
- If the employer is H-1B dependent and/or is a willful violator, list a summary of all recruitment methods used and the time frame of recruitment of U.S. workers.
Remember, you need to have this documentation prepared and ready to go for public inspection one business day after the LCA is filed.
Step 2: Know what needs to be excluded
In your PAF, only include documents that are required by law. Do not include, for example, employment records or company financials. Doing so could create privacy and additional compliance concerns for you—something you don’t want to invite willingly.
In today’s digitally-connected workplaces, gathering the needed documents for your PAF file (and leaving out the ones you don't) is made easier through digital immigration technology platforms. With vast workplace changes occurring over the last year, digitized and automated LCA postings and PAF management have moved from nice-to-haves to required technology, as working virtually or in a hybrid environment is becoming the norm, helping you with management and compliance.
Step 3: Know how to store your PAF
After you gather your documents and other information required by law, you need to know where and how to store your PAF. With so many things on your to-do list, you may decide to save and keep your PAF in a physical format, sticking it in a file cabinet in your office. Or you may save and store it as a digital file on your drive. At least it’s saved – right?
Unfortunately, doing so can still leave you exposed to liability. So, let’s look at some best practices in storing your PAF.
First, as we mentioned above, do not include company financial information or other documentation that you usually find in an employment file (such as employment history or disciplinary actions) with your PAF. Instead, you’ll need to store your PAF—along with all required documentation—separate from the employee’s personnel file.
Second, you want to safeguard your employee’s information. For example, do not simply store your PAF in a file cabinet that anyone can access. Instead, store it in a locked file cabinet, where only certain people have access.
Third, consider upgrading by digitizing both your PAF creation and retention process. By doing so, you can convert a time-consuming process into coherent workflows you can review at a glance, enabling you to devote time to higher-level tasks while reducing compliance risk. That is a win-win.
So, how are you maintaining and storing your PAF? Understanding the value of leveling up your PAF management system (and some industry best practices) not only helps with your compliance, but it can give you—and your employees—some peace of mind.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
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