Key Takeaways:
- H-1B Public Access File (PAF) is a collection of documents demonstrating compliance with H-1B program conditions.
- PAF must include LCA, wage rate documentation, salary pay records, benefits plans, and more.
- Employers must update, provide public access to, and retain the PAF to maintain compliance with H-1B regulations.
Understanding the H-1B Public Access File
For employers who sponsor non-immigrant workers through the H-1B visa program, maintaining compliance is critical. One important aspect of compliance is the creation and management of an H-1B Public Access File (PAF). The Public Access File is a collection of important documents that must be kept ready and available for public inspection, which demonstrates that the employer is adhering to all the relevant labor conditions associated with the H-1B program.
What Is an H-1B Public Access File?
An H-1B Public Access File is a set of documents that employers must compile and make available for public inspection within one working day after the Labor Condition Application (LCA) is filed with the Department of Labor (DOL). These documents serve as a record that the employer is meeting the conditions specified in the LCA and is providing the H-1B employee with wages and working conditions that are at least as favorable as those offered to similarly employed U.S. workers.
Creating an H-1B Public Access File
Creating a compliant H-1B Public Access File requires meticulous attention to detail. The PAF must contain the following documents:
Labor Condition Application (LCA)
This is the form ETA 9035 & 9035E filed by the employer with the DOL before the H-1B petition. Employers must keep a signed and dated copy of the LCA in the PAF.
Documentation of the Wage Rate
Employers must keep documents that show how they established the actual wage for the H-1B position, including a detailed explanation of the system used to set the wage.
Salary Pay Records
Clear records of the payment remuneration to the H-1B employee must be included, demonstrating that you are paying at least the prevailing wage or the actual wage, whichever is higher.
Full, Clear Explanation of the System Used to Set the Actual Wage
Employers must be able to produce the system, policy, or scale used to determine wage levels for employees, showing that the H-1B worker is not being undervalued compared to similar positions.
Copy of the Prevailing Wage Determination
The file must contain a copy of the prevailing wage along with an explanation of how it was determined, whether it was obtained from the State Employment Security Agency (SESA) or based on another legitimate source.
A Detailed Summary of the Benefit Plans Offered to U.S. Workers
The summary should demonstrate that the H-1B worker is given the same opportunity to participate in benefit plans as U.S. workers.
A Copy of the Actual Internal Notice
This is the notice that must be given to the workforce on or within 30 days before the LCA is filed with the DOL.
Evidence of Compliance with the Public Inspection Requirement
This includes, for example, the date the LCA was posted in two conspicuous locations at the worksite.
A List of Exempt H-1B Nonimmigrant Employees
An exempt H-1B nonimmigrant is someone whose earnings are above a certain threshold or who possesses a master’s degree or higher in the specialty related to the employment.
Maintaining H-1B Public Access File Compliance
After creating an H-1B Public Access File, the employer must maintain it for public inspection at the principal place of business or at the worksite. The responsibility for maintaining H-1B PAF compliance includes:
- Updating the File: As changes occur, the PAF should be updated accordingly. For instance, if there is a significant change in the employment terms of the H-1B worker.
- Public Access: The Public Access File must be made available to any interested party within one working day of a written or oral request.
- Retention: The employer is required to retain the PAF for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed, one year from the date the LCA expired or was withdrawn.
Properly creating and maintaining an H-1B Public Access File is not merely an administrative task; it’s a legal requirement. Failing to comply can lead to serious consequences, including fines, bans from future visa filings, and damage to the company’s reputation. Therefore, it’s imperative for employers to familiarize themselves with these requirements.
For further guidance, the Office of Foreign Labor Certification (OFLC) provides extensive resources. Employers can also consult the Handbook for Employers M-274 for additional information on employee eligibility verification. By following these detailed steps, employers can ensure they are meeting their legal obligations, thereby protecting their business and their international workforce.
Still Got Questions? Read Below to Know More
Do I need to keep a copy of the Public Access File for my own records as an H-1B employee?
Yes, as an H-1B employee, it is advisable to keep a copy of the Public Access File (PAF) for your own records. The PAF is maintained by your employer, and it contains important documents related to your H-1B petition, such as the Labor Condition Application (LCA), wage rate information, and a summary of benefits offered to you. Here are several reasons why you should have a copy:
- Proof of Compliance: Having your own copy provides proof that your employer is compliant with H-1B regulations.
- Personal Records: It allows you to have instant access to important documents concerning your visa status, wages, and working conditions.
- Future References: The file can be useful if you need to refer to it for any future immigration processes or in the event of a legal dispute regarding your employment.
While the PAF is primarily for public inspection and typically handled by the employer, it is within your right to request a copy for your own records. However, there are certain components of the file that you might not be able to access, such as internal wage data for other employees. To know more about your rights as an H-1B employee and what should be included in the Public Access File, you can visit the official website of the United States Department of Labor (DOL) at this link: Office of Foreign Labor Certification.
Keep in mind that these documents not only help ensure you’re informed about your employment terms but also assist in maintaining the accountability of your H-1B sponsoring employer. Always communicate with your employer to obtain the necessary documentation. If you face any challenges in accessing the file, you may seek guidance from an immigration lawyer or a trusted advisory service.
What happens if my employer doesn’t show me the H-1B Public Access File when I request it?
When you’re working in the United States on an H-1B visa, your employer is required by law to maintain a Public Access File (PAF) and make it available to you upon request. The PAF includes important documents about the conditions of your employment, such as your labor condition application (LCA) and prevailing wage information.
If your employer does not show you the Public Access File upon request, they may be in violation of regulations set by the U.S. Department of Labor (DOL). Here’s what can happen:
- Reporting Non-Compliance: You have the right to report the employer’s non-compliance to the DOL. The DOL may then investigate the matter.
Investigation and Penalties: If the DOL finds that the employer has indeed violated the regulations, they might face penalties including fines, being barred from participating in the H-1B program, and other sanctions.
Your Status and Protection: Your H-1B status should not be affected by your employer’s actions in this regard, and the DOL offers whistleblower protections for workers who expose violations of the immigration or labor laws.
Quote from the DOL: “The public disclosure file must be available to the public, or to Federal agencies, within one working day after the date on which the LCA is filed with ETA.”
For more detailed information on PAF requirements and your rights, you can visit the official website of the United States Citizenship and Immigration Services (USCIS) USCIS H-1B Employer Data Hub and the DOL’s Wage and Hour Division. If you feel your employer is not complying with H-1B regulations, you may also consider seeking advice from an immigration attorney to understand your options.
Can a former employee request to see the Public Access File after leaving the company?
Yes, a former employee has the right to request to see the Public Access File (PAF). The PAF is maintained by employers in the United States who hire foreign nationals through the H-1B visa program. According to the regulations enforced by the Department of Labor (DOL), the PAF must be available for public inspection, which includes access by current and former employees.
When requesting to see the Public Access File, here’s what you should know:
- Right of Access: Any member of the public, which includes former employees, can request access to the PAF. Employers are required to make the PAF available within one working day after a request is made.
- Contents of the File: The PAF typically contains labor condition applications (LCAs), wage rate documentation, a summary of the benefits offered to U.S. and H-1B workers, and other relevant information pertaining to the employment of H-1B visa holders.
- Request Procedure: You should make the request in writing directly to the former employer. The employer must provide the PAF at its principal place of business or at the place of employment within the mandated time frame.
The Department of Labor provides detailed guidelines on the Public Access File and its requirements, which can be found on their Office of Foreign Labor Certification page.
“Employers are required to maintain a public inspection file, which shall be available for public inspection at the employer’s principal place of business or at the place of employment within one working day after the date on which the LCA is filed with ETA.” – Department of Labor
Please remember, if an employer fails to comply with a request to access the PAF, there are channels to report this non-compliance to the appropriate government authorities.
Can I view a company’s H-1B Public Access File online before applying for a job?
Yes, in many cases, it is possible to view a company’s H-1B Public Access File (PAF) online before applying for a job. The H-1B Public Access File is maintained by the employer and should be available for public inspection. This file contains documentation related to the H-1B visa petition, and it helps ensure that the company is complying with the regulations surrounding the employment of H-1B workers.
However, not every company may readily provide an online repository of these files. Some employers might require individuals to request access to view these files. Also, certain data regarding H-1B visa holders and applicants such as the Labor Condition Application (LCA) can be found online through the Department of Labor’s (DOL) LCA database. You can search the following types of LCAs that were applied for by employers:
– Approved
– Certified-Withdrawn
– Withdrawn
– Denied
You can utilize the iCert Visa Portal System provided by the DOL to look up LCAs by employer name, which can give you an insight into the company’s use of the H-1B program. Keep in mind that just because a company has filed LCAs or hired H-1B employees in the past does not guarantee future applications will be accepted or that they are currently hiring H-1B workers.
For more detailed and specific information, here are some external links that could be of assistance:
– iCert Visa Portal System for Labor Condition Application (LCA): https://icert.doleta.gov/
– H-1B Data Hub from U.S. Citizenship and Immigration Services (USCIS), which allows the public to search for H-1B petitioners: https://www.uscis.gov/h-1b-data-hub
These resources should enable you to gather the necessary information on a company’s involvement with H-1B visa petitions before you decide to apply for a job.
If I’m hired for a remote position, where should the H-1B Public Access File be posted?
If you’re hired for a remote position under the H-1B visa program, your employer is still responsible for creating and maintaining a Public Access File (PAF). According to U.S. immigration regulations, the PAF should be kept at the principal place of business or the worksite. In the scenario where the employee is working remotely, the employer has two typical options for where to maintain the PAF:
- Employer’s Principal Office: The PAF can be stored at the employer’s main business location or headquarters. This is considered the default location, especially if the remote employee does not work at a fixed company worksite.
Worksite: If the remote employee works from home, the home address of the H-1B worker could be considered a worksite. However, instead of keeping the PAF at the employee’s home, which could be intrusive and impractical, the employer may keep the file at the office that has administrative control over the employee’s work location.
The PAF must be made available for public inspection within one working day after the date on which the H-1B nonimmigrant begins work for the employer. It should include documentation such as the Labor Condition Application (LCA), a detailed explanation of how the wage for the position was determined, the actual wage rate, and the prevailing wage rate, among other items.
For more detailed information on the PAF and H-1B visa requirements, you may refer to the official website of the United States Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS):
- DOL’s Office of Foreign Labor Certification: OFLC Frequently Asked Questions and Answers
USCIS H-1B Specialty Occupations: H-1B Specialty Occupations
Learn Today:
Glossary
H-1B Public Access File (PAF): A collection of important documents maintained by employers who sponsor non-immigrant workers through the H-1B visa program. These documents must be made available for public inspection to demonstrate compliance with labor conditions associated with the H-1B program.
Labor Condition Application (LCA): The form ETA 9035 & 9035E filed by the employer with the Department of Labor (DOL) before submitting an H-1B petition. The LCA specifies the labor conditions, including wages and working conditions, that the employer agrees to provide to the H-1B employee.
Wage Rate Documentation: Documents showing how the employer established the actual wage for the H-1B position, including a detailed explanation of the system used to determine the wage.
Salary Pay Records: Clear records of payment made to the H-1B employee, demonstrating that the employer is paying at least the prevailing wage or the actual wage, whichever is higher.
System Used to Set the Actual Wage: The system, policy, or scale used by the employer to determine wage levels for employees. This demonstrates that the H-1B worker is not being undervalued compared to similar positions.
Prevailing Wage Determination: The wage level determined to be prevailing in a geographic area for a specific occupation, based on data from the State Employment Security Agency (SESA) or other legitimate sources. The PAF should include a copy of the prevailing wage along with an explanation of how it was determined.
Summary of Benefit Plans: A detailed summary demonstrating that the H-1B worker is offered the same opportunity to participate in benefit plans as U.S. workers.
Actual Internal Notice: The notice given to the workforce on or within 30 days before the LCA is filed with the DOL, informing them of the H-1B employment. A copy of this notice should be included in the PAF.
Evidence of Compliance with Public Inspection Requirement: Documentation showing that the employer has complied with the requirement to post the LCA in two conspicuous locations at the worksite and other relevant public inspection requirements.
Exempt H-1B Nonimmigrant Employees: H-1B nonimmigrants who are exempt from certain requirements based on earnings above a certain threshold or possession of a master’s degree or higher in the specialty related to the employment.
Updating the File: The process of making necessary changes and updates to the Public Access File when significant employment terms or conditions for the H-1B worker change.
Public Access: The requirement to make the Public Access File available to any interested party upon written or oral request within one working day.
Retention: The obligation of the employer to retain the Public Access File for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed, one year from the date the LCA expired or was withdrawn.
So there you have it, a comprehensive understanding of the H-1B Public Access File! Remember, this file is not to be taken lightly, as compliance is crucial. But don’t worry, you don’t have to navigate it alone. For more in-depth guidance and expert advice, head over to visaverge.com and explore their resources. Trust me, it’s worth it!
This Article in a Nutshell:
The H-1B Public Access File (PAF) is a collection of documents that employers must maintain for public inspection. It ensures compliance with labor conditions of the H-1B visa program. The PAF includes the Labor Condition Application, wage rate documentation, salary pay records, and more. It’s important for employers to understand and properly maintain the PAF to avoid penalties and protect their business.
