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How to Create and Maintain an H-1B Public Access File

Oct 3, 2023

H-1B employer creates a public access file.

As businesses increasingly expand their operations globally, the need to hire foreign workers has become a common practice. To ensure transparency and compliance with immigration regulations, U.S. Citizenship and Immigration Services (USCIS) requires employers to create and maintain a Public Access File (PAF) for each H-1B worker they hire. Here’s what employers need to know about creating and maintaining a Public Access File.

What is a Public Access File (PAF)?

A Public Access File, often abbreviated as PAF, is a requirement for employers hiring foreign workers under the H-1B visa program. It serves as a repository of records and information pertaining to the H-1B worker’s employment and is accessible to the public and government agencies upon request. The PAF ensures transparency in the hiring process and helps verify that employers are adhering to the H-1B program’s rules and regulations.

When Must a Public Access File be Created?

Employers must create a Public Access File (PAF) for each H-1B employee they hire. The PAF should be established no later than the date on which the employer submits the Labor Condition Application (LCA) to the Department of Labor (DOL). This is a crucial step in the H-1B petition process, and failure to create a PAF in a timely manner can lead to compliance issues and potential penalties.

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How Long Must a Public Access File be Maintained?

An employer must maintain the PAF for one year beyond the last date on which the H-1B employee is employed under the H-1B visa or until the expiration of the LCA, whichever is later. This means that even after the H-1B worker leaves the company or their visa expires, the PAF must still be retained for an additional year.

What Should a Public Access File Contain?

A well-organized and complete Public Access File (PAF) is crucial to show an employer is following the rules of the H-1B visa program. Here’s a list of the key documents and information that should be included in the PAF:

  • LCA (Labor Condition Application): A copy of the certified LCA should be the first document in the PAF. It serves as the foundation for the H-1B petition and contains important details about the employee’s wages and working conditions.
  • Copy of H-1B Petition: Include a copy of the H-1B petition filed with USCIS, along with any supporting documentation.
  • Documentation of Wage Rate: Maintain records of the wage paid to the H-1B employee, including any pay increases or changes in job title and responsibilities.
  • Evidence of Posting Notices: Include documentation proving that required notices about the H-1B employment were posted in the workplace for at least 10 consecutive business days or distributed to employees.
  • Prevailing Wage Determination: If applicable, retain the documentation of the prevailing wage determination obtained from the DOL.
  • Documentation of Recruitment: If the employer conducted recruitment efforts for the position, include copies of advertisements, job postings, and relevant communication.
  • Payroll Records: Maintain payroll records, including pay stubs or records of direct deposits, for the H-1B employee.
  • Termination Records: In case of the H-1B employee’s termination, include documentation explaining the circumstances of the termination.
  • Other Supporting Documents: Any additional documentation related to the H-1B employee’s employment, such as performance reviews or evaluations, should also be included.

Creating and maintaining a PAF is a crucial requirement for employers hiring foreign workers under the H-1B visa program. It ensures transparency, compliance with immigration regulations, and accountability. By following the guidelines outlined above, employers can establish and maintain a comprehensive PAF that not only meets regulatory requirements but also helps them navigate the H-1B visa process successfully while demonstrating their commitment to adhering to the program’s rules and regulations.