Department of Labor's (DOL) requirement for maintaining a Public Access File (PAF) in connection with H-1B, H-2B, H-1B1, and E-3 visa petitions

The PAF is a crucial component of the H-1B, H-2B, H-1B1, and E-3 visa programs, designed to promote transparency and accessibility of information related to the employment of foreign workers. Employers sponsoring foreign nationals under these visa categories are required to maintain a PAF throughout the duration of the worker's employment in the United States.

What is the Public Access File?

The Public Access File is a record-keeping mechanism mandated by the DOL to allow public access to certain documents associated with H-1B, H-2B, H-1B1, and E-3 visa petitions. It serves as a means for the public to review and verify the employer's compliance with the pertinent regulations and ensures that the employment of foreign workers does not adversely affect the working conditions of U.S. workers.

Components of the Public Access File

The PAF must be made available to the public within one working day of filing the LCA and must contain the following documents:

1. Labor Condition Application (LCA): The signed and certified LCA must be included in the PAF. The LCA contains information about the terms and conditions of employment, including the wage offered, location of employment, and attestations regarding working conditions. LCA instructions should also be included in the PAF.
2. Wage Rate Documentation: Employers must include documentation supporting the wage rate offered to the H-1B, H-2B, H-1B1, or E-3 worker, such as job description, prevailing wage determinations and documentation of wage surveys.
3. Job Posting Notices: Copies of the job posting notices, which must be posted in two conspicuous locations at the worksite for a specified period. Electronic notification to employees may be required if the majority of the workforce uses electronic means for communication.
4. Explanation of benefits offered to U.S. workers and H-1B, H-2B, H-1B1, and E-3 workers: The benefits offered must be the same for U.S. workers and foreign workers. A brief summary of those benefits must be included in the PAF.

In the case of a corporate change, additional documentation will be required. Similarly, if the employer is “H-1B dependent” or a willful violator, other documents will be required to be included in the PAF.

Job Posting Notices

Notice must be given to U.S. workers on or within 30 days before the date the employer files the Labor Condition Application (LCA) with the Department of Labor. This notice must include:

1. The number of nonimmigrants the employer is seeking to employ.
2. The occupational classifications in which the nonimmigrants will be employed.
3. The wages offered.
4. The period of employment.
5. The locations at which the nonimmigrants will be employed.
6. The following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

Notification must be done in one of the following ways:

1. Union notice: When there is a collective bargaining representative for the occupation in which the worker will be employed, the employer must provide such notice to that collective bargaining representative via a copy of the LCA or other document which includes all items listed above.
2. When there is no bargaining representative, the employer must provide the items listed above either by
   1. Hardcopy worksite notice: Posting the notice of the filing of the LCA (or the information therein) at two conspicuous locations at the place of employment for 10 days; or
   2. Electronic notice: Electronically providing the notice of the filing of the LCA to all workers at the place of employment for 10 days. If an employer chooses to provide notice electronically, the employer must electronically notify all employees at the place of employment in the occupational classification for which workers are sought. This notice may be provided by individual e-mail messages, by posting on an appropriate electronic bulletin board, or by other appropriate methods.

If the foreign worker is placed at a new job site but a new petition does not need to be filed with USCIS, notice must still be given to the workers at the new worksite in the manner described above. The posting must be accomplished on or before the date the H-1B worker begins work.

Access to the Public Access File

The PAF must be made available to interested parties, such as affected U.S. workers or their representatives, upon request. The employer is required to provide access to the file within one working day of the request. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs, for example.

The employer must give a copy of the LCA to each foreign worker no later than the date s/he reports to a permanent place of work.

Although not expressly allowed by the Department of Labor, many employers choose to store the PAF electronically for ease of access, organization, and retrieval. Electronic storage allows for efficient management of documents, easier updates, and quick responses to requests for access. If you are considering electronic storage, it's essential to ensure that the system used complies with recordkeeping requirements and can provide timely access to the required documents.

Importance of Compliance

Failure to comply with the PAF requirements may result in penalties, fines, or other adverse actions. It is essential for employers to maintain accurate and up-to-date Public Access Files to demonstrate compliance with the H-1B, H-2B, H-1B1, and E-3 regulations.

How We Can Help

Our team is committed to assisting you in meeting all the regulatory requirements associated with H-1B, H-2B, H-1B1, and E-3 visa petitions. We will guide you through the process of creating and maintaining a thorough and compliant Public Access File.  We are also available to audit your PAFs to ensure they are in compliance with regulations.

If you have any questions or concerns regarding the Public Access File or any other aspect of the business immigration process, please do not hesitate to reach out. We are here to support you in navigating the complexities of business immigration compliance.