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How to Create & Maintain a Public Access File

Bridge Team Member

Anoften overlooked but nevertheless essential component of a successful H-1B hireis the creation and maintenance of the infamous “public access file”.  Despite its intriguing name, this filerepresents a fairly mundane set of documents that HR managers must have on handfor inspection by the public for a defined period of time.

Theobligation to create this file begins even before the actual I-129 petition isfiled with the Unites States Citizenship and Immigration Services (USCIS).  Rather, the timing of this obligation centersaround the filing of the Labor Condition Application (LCA) with the U.S.Department of Labor.  This is an onlineapplication that must be approved (or certified) in advance of any H-1Bpetition filing, with an average turnaround time of around 7 to 10 days.  

Oncecreated, the public access file must be made available for inspection at eitherthe employer’s principal place of business or the location of the profferedemployment within one working day of filing the LCA.  It must be maintained by the employer at thislocation until at least one year after the final day on which the H-1Bbeneficiary was employed pursuant to this particular LCA approval.

Even if theintended beneficiary does not ultimately enter into H-1B employment with thesponsoring employer, the public access file must be maintained for a period ofone year after the LCA’s expiration or withdrawal.

So, whatexactly is contained within this public access file?  The following is a comprehensive list of theitems to be collected and made available under federal regulations.

What You Need

§  A printed copy of the submitted LCA, signed bythe employer’s representative

§  Documentation that provides the wage to be paidto the H-1B worker

§  An explanation of the system used by theemployer in setting the wages offered for the occupation in which the H-1Bemployee will be working

§  The source(s) used to establish the “prevailingwage” for the occupation in question

§  A copy of any required notifications that weremade available to existing employees and/or labor unions

§  A summary of benefits offered to U.S. workersin the same occupation, and an explanation of any disparity between thosebenefits and the benefits offered to those employed as H-1B workers

Whilethe items listed above cover the basic requirements for all sponsoringemployers, there may be additional requirements for those who undergo a changein their corporate structure during the relevant time period, such as a mergeror acquisition, or those employers who fall under the statutory definitions of“H-1B dependent” or “willful violators”. 

So,now that you have your public access file neatly compiled and placed in theappropriate location, should you inform the front desk that they can expect aninflux of visitors eager to sample your handiwork up close?  Most likely not. 

Aswith many areas of regulatory compliance, the public access file is somethingthat may have limited practical application, but you want to be able todemonstrate that you have complied with in full to avoid unforeseen andunnecessary roadblocks down the line. Want to make sure your company is prepared for anything and everything? Check out our I-9 Compliance Self-Audit and this guide on How to Prepare for a USCIS Site Visit.

Bridge US Offers Paperless PAF

We wanted to let you know that we’ve made significant changes to our Public Access File (“PAF”) process. Previously, you were asked to download the PAF, sign certain pages, and then scan and upload the PAF back to the platform. We understand that this process was complicated and time-consuming, so we decided to update it to make it easier for you to complete PAFs. Introducing the paperless PAF!

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.us.

Disclaimer: This content is not a form of legal advice and should not be treated as a substitute for legal counsel. Bridge US encourages readers to discuss any and all immigration-related concerns with an attorney.

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