An often overlooked but nevertheless essential component of a successful H-1B hire is the creation and maintenance of the infamous “Public Access File”. Despite its intriguing name, this file represents a fairly mundane set of documents that HR managers and People teams must have on hand for inspection by the public for a defined period of time.
The obligation to create this file begins even before the actual I-129 petition is filed with the Unites States Citizenship and Immigration Services (USCIS). Rather, the timing of this obligation centers around the filing of the Labor Condition Application (LCA) with the U.S. Department of Labor. This is an online application that must be approved (or certified) in advance of any H-1B petition filing, with an average turnaround time of around 7 to 10 days.
Once created, the public access file must be made available for inspection at either the employer’s principal place of business or the location of the preferred employment within one working day of filing the LCA. It must be maintained by the employer at this location until at least one year after the final day on which the H-1B beneficiary was employed pursuant to this particular LCA approval.
Even if the intended beneficiary does not ultimately enter into H-1B employment with the sponsoring employer, the public access file must be maintained for a period of one year after the LCA’s expiration or withdrawal.
So, what exactly is contained within this public access file? The following is a comprehensive list of the items to be collected and made available under federal regulations.
What You Need
- A printed copy of the submitted LCA, signed by the employer’s representative
- Documentation that provides the wage to be paid to the H-1B worker
- An explanation of the system used by the employer in setting the wages offered for the occupation in which the H-1B employee will be working
- The source(s) used to establish the “prevailing wage” for the occupation in question
- A copy of any required notifications that were made available to existing employees and/or labor unions
- A summary of benefits offered to U.S. workers in the same occupation, and an explanation of any disparity between those benefits and the benefits offered to those employed as H-1B workers
While the items listed above cover the basic requirements for all sponsoring employers, there may be additional requirements for those who undergo a change in their corporate structure during the relevant time period, such as a merger or 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 the appropriate location, should you inform the front desk that they can expect an influx of visitors eager to sample your handiwork up close? Most likely not.
As with many areas of regulatory compliance, the public access file is something that may have limited practical application, but you want to be able to demonstrate that you have complied with in full to avoid unforeseen and unnecessary roadblocks or fines 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 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 digital PAFs. Introducing the paperless PAF!
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.
