Updated H-1B Rules Tighten Requirements for Public Access File Compliance

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Key Takeaways

Employers must establish a Public Access File (PAF) for each H-1B worker on the same day the LCA is filed.
Updated regulations for 2025 impose penalties up to $50,758 per violation and require PAFs to be produced within one business day.
PAFs must include certified LCA, wage data, notice proof, and prevailing wage determination, ensuring compliance under heightened scrutiny.

Employers hiring H-1B workers have a responsibility to strictly adhere to public access file (PAF) requirements under updated H-1B regulations, as failing to meet these standards could lead to serious penalties. Documenting compliance involves proper handling of notice postings, record maintenance, and adherence to Labor Condition Application (LCA) rules. This guide outlines the key elements of managing PAFs and the obligations attached to employers, reflecting regulations up to February 2025.

What is the Public Access File (PAF)?

Updated H-1B Rules Tighten Requirements for Public Access File Compliance

The PAF is a collection of documents that an employer must maintain to show compliance with various requirements when employing an H-1B worker. It must include crucial records like the certified and signed LCA, wage data, and evidence of notice posting, among others. Not only is the maintenance of the PAF a legal obligation, but it also serves as proof of an employer’s good-faith effort to comply with H-1B program rules.

Creating and Storing the PAF

Employers must establish a PAF specifically for each H-1B worker on the same day they file the LCA with the Department of Labor (DOL). This file should remain available for at least one year after either the H-1B worker leaves employment or the LCA expires, depending on which occurs later.

Employers have flexibility when it comes to storing the file. It can be kept physically at the company’s primary business location or at the worker’s worksite. Alternatively, it may be stored electronically, provided it is in a secure location. Records stored electronically must be easily accessible and promptly producible in case of a DOL inspection or audit.

Contents of the PAF

All required PAF documents must be well-organized and accurately maintained. Below is a comprehensive list of what the file must include:

Signed LCA: A copy of the certified and signed LCA filed with the DOL.
Wage Records: Documentation of the H-1B worker’s wage rate, including how the actual wage was calculated.
Prevailing Wage Determination: An explanation of how the prevailing wage was established, typically using regional labor market data.
Notice Posting Proof: Evidence that notice requirements were fulfilled (more details below on this topic).
Benefits Comparison: A summary of the benefits offered to H-1B workers and U.S.-based employees at the same level.
Corporate Compliance: Any additional records related to corporate changes or lists of affiliated entities considered part of a single employer, if applicable.
Recruitment Evidence: For H-1B-dependent or willful violator employers, summaries of recruitment methods used for hiring H-1B workers and details on any “exempt” workers.

Employers should attach a unique identifier to each PAF and maintain a master list correlating these identifiers to respective employees. This system helps with tracking and efficient retrieval.

Notice Posting Requirements

Employers must provide notice that an LCA has been filed to U.S. workers employed in the same occupational category and at the same location as the H-1B worker. There are different ways this notice can be delivered:

Physical Posting: A notice or a copy of the LCA should be displayed in two noticeable places at the worksite. These postings must remain visible for 10 consecutive business days. Employers should document where and when the notices were posted.
Electronic Notification: Employers may choose email, internal communications, or other electronic systems to notify workers instead of posting physical notices. Employers should retain evidence of the notification process, including distribution methods and any proof of receipt by employees.
Union Notification: If a collective bargaining agreement applies, the notice must be provided to the bargaining representative.

Documenting these notifications thoroughly ensures that employers meet their legal obligations. For physical postings, photos or written logs specifying dates and locations can serve as evidence.

Maintaining Wage and Payroll Records

As part of compliance, employers must maintain employment records that back their wage payment practices. Such documentation includes but is not limited to:

Payroll evidence showing the actual hours worked and wages paid.
A detailed explanation of actual wage determination (the salary paid to the H-1B worker compared to similar employees in their field).
Proof of prevailing wage sources (data often obtained from government or industry reports).

Although wage and payroll records aren’t stored within the PAF itself, they must be available for inspection by DOL if requested.

Compliance with LCA Attestations

H-1B employers agree to specific attestations upon filing an LCA, and proper documentation is essential for demonstrating compliance. Key areas requiring evidence include:

Workplace Conditions: Records showing that working conditions for H-1B employees do not negatively impact similarly employed U.S. workers.
Workplace Stability: Evidence showing no strikes, lockouts, or significant disruptions due to the presence of H-1B workers.
Changes in Employment: If an H-1B worker’s role changes during employment (e.g., a promotion or relocation), employers should document how these changes comply with existing requirements.

Recent Changes to Regulations

Several modifications in regulatory practices have taken effect as of February 2025:

Harsher Penalties: The maximum fine for non-compliance has increased to $50,758 per violation. This significant penalty emphasizes the importance of strict compliance.
Intensified Audits: The DOL has introduced more thorough audit procedures. Employers must be able to produce their PAFs within one business day of receiving a request for inspection.
Electronic File Options: Employers storing files digitally must guarantee their accessibility on short notice.
Wage Setting Scrutiny: Inspectors now pay more attention to prevailing and actual wage determinations. Employers should document both consistently and comprehensively.

Best Practices for Compliance Documentation

Following these practices can help employers mitigate risks and demonstrate adherence to H-1B requirements:

Standardize a system for creating and tracking PAFs.
Schedule routine audits of PAFs to confirm completeness and compliance.
Train HR staff to ensure they understand the updated regulations and record-keeping standards.
Keep confidential employee data separate from PAFs to protect privacy.
Establish a system for managing PAF retention schedules to ensure timely file deletion after the required retention period ends.
Record detailed evidence of any material changes in H-1B employment conditions (e.g., job title changes or worksite relocations).
Set up efficient systems to respond promptly to DOL audits or inspections.

Conclusion

Maintaining accurate and complete documentation, including public access files and payroll records, is crucial for employers of H-1B workers. With increasingly stringent government scrutiny, compliance has never been more important. The DOL continues to enforce updated H-1B regulations vigorously, and unprepared employers face significant penalties or disqualification from the program. As highlighted by VisaVerge.com, thorough documentation not only ensures compliance but also demonstrates an employer’s commitment to meeting legal obligations fairly. For authoritative guidance, consult official resources such as the Department of Labor’s website on LCA requirements.

By following these guidelines, employers can manage their obligations properly while protecting themselves from violations, audits, and fines.

Learn Today

H-1B Worker → A foreign professional employed in the U.S. under a specialized visa for highly skilled roles in specific industries.
Public Access File (PAF) → A mandatory file containing records proving an employer’s compliance with hiring requirements for H-1B workers.
Labor Condition Application (LCA) → A document filed with the Department of Labor to attest to wage and workplace conditions for H-1B employment.
Prevailing Wage Determination → The process of establishing a standard wage for a job, based on regional market rates and job duties.
Notice Posting Requirements → Legal obligations for employers to inform U.S. workers about an H-1B worker’s hiring through physical or electronic notices.

This Article in a Nutshell

Avoid hefty fines—master H-1B compliance! Employers must maintain a Public Access File (PAF) documenting wage determinations, postings, and Labor Condition Application (LCA) compliance. Updated 2025 regulations introduce tougher audits and $50,758 penalties for violations. Proper training, file organization, and regular audits protect employers. Compliance isn’t optional; it’s essential for risk-free H-1B program participation.
— By VisaVerge.com