H-1B visa compliance for employers: Is your Public Access File in order?



July 30, 2017

Immigration Law Alert

Author(s): Jason Gerrol

With the Trump administration taking a tough stance on H-1B visa fraud and abuse, now is the time for employers who sponsor H-1B visa workers to ensure their Public Access File is in compliance with the law.

In April 2017, U.S. Citizenship and Immigration Services (USCIS) again received well over the annual cap of 85,000 new H-1B petitions for fiscal year 2018, and it remains clear that the H-1B visa program is a critically important source of high-skilled workers for many U.S. employers.

In light of an H-1B focused executive order and previous Trump administration guidance regarding H-1B visa fraud and abuse, it is also clear that H-1B compliance will be a major focus of both USCIS and the U.S. Department of Labor (DOL). As such, H-1B sponsoring employers should review their H-1B sponsorship policies and procedures and, specifically, an often overlooked area of compliance: the H-1B Public Access File (PAF).

What is a Public Access File?

Prior to filing an H-1B petition with USCIS, an employer must first obtain a certified Labor Condition Application (LCA) from the DOL. This requirement also applies to the H-1B1 and E-3 visa categories. The LCA requires the employer to attest to paying the H-1B beneficiary the higher of the actual wage level paid by the employer or the prevailing wage level for the occupation, among other attestation requirements.

Within one working day of filing the LCA, employers must make certain documents available for public inspection either at the employer’s principal place of business or at the place of employment. These public inspection documents comprise the PAF.

The PAF documents should not identify the employee by his/her name. Rather, an employer should create a system to identify which LCA in the PAF belongs to which employee(s) (e.g., labeling the PAF LCA with an employee number, not the employee’s name).

What documents must be in the PAF?

Per DOL regulations, the PAF must include:

  • Copy of the certified LCA,
  • Documentation of the rate of pay for the H-1B worker,
  • Explanation of the system the employer used to determine the wage rate (e.g., a memo summarizing the system or a copy of the employer’s pay system or scale),
  • Documentation of the prevailing wage rate for the occupation (e.g., a general description of the source and methodology used to establish the prevailing wage),
  • Documentation that the employer complied with the union or employee notification requirements (e.g., a copy of the dated notice) and
  • Summary of benefits offered to U.S. workers and H-1B workers in the same occupational classification.

What other documents might be required in the PAF?
In the event the employer undergoes a change in corporate structure (e.g., a merger, acquisition or “spin off”), a successor employer must also maintain in the PAF:

  • A list of each affected LCA and its date of certification,
  • A description of the new successor employer’s actual wage system,
  • The Federal Employer Identification Number (FEIN) of the successor employer and
  • A sworn statement by an authorized representative of the successor employer accepting all obligations and liabilities of the LCAs filed by the predecessor entity.

Prior to any changes in corporate structure, employers should be sure to discuss with immigration counsel the impacts of such restructuring on their foreign national workers, and H-1B workers in particular.

In addition, an H-1B dependent employer, one who employs a high number of H-1B workers relative to other full-time equivalent employees, as well as employers who have willfully violated the H-1B regulations in the past, must include additional documents in their PAF, including:

  • A list of “exempt” H-1B workers and
  • An explanation of recruitment methods if the employer hired “non-exempt” H-1B workers.

Employers who are considered H-1B dependent or a willful violator should discuss their H-1B visa obligations with experienced immigration counsel.

How long must the PAF documents be maintained?

An employer must maintain the required PAF documents for a period of one year beyond the last date on which an H-1B worker is employed under the LCA, or, if no H-1B workers were employed under the LCA, one year from the date the LCA expired or was withdrawn. If an employer is under investigation for H-1B violations, the records must be maintained for the duration of the investigation.

Just how “public” is the PAF?

The PAF should not be maintained in a public space. Rather, the PAF should be in a secure location, and access granted only to an interested or aggrieved party, including the DOL, as requested.

Are electronic (or digital) PAFs allowed?

While not expressly allowed by the regulations, the DOL has recently announced that they have no concerns regarding an electronic PAF, including a scanned copy of the signed LCA.

What other documents must be maintained in connection with, but not in, the PAF?

An employer must maintain payroll records for H-1B employees and other employees in the occupational classification for a period of three years from the date(s) of the creation of the record(s). Importantly, these payroll records and any other personally identifiable information (PII) should be maintained in a private file separate from the PAF itself.

Furthermore, while not required by law, an employer may want to create a separate file to store immigration documents for individual H-1B employees (e.g., I-797 approval notices, copies of petitions, etc.). Again, these documents should be maintained separately from the PAF, and the PAF documents should not identify the employee by his/her name.

Next steps to ensure PAF compliance?

The above information is for general guidance purposes only.

As an initial step, employers who sponsor H-1B employees should review their existing PAF to ensure the required documents and information are in place and, perhaps equally as important, to ensure documents that do not belong in the PAF are removed. In addition, as part of an overall visa compliance program, employers should track the relevant LCA expiration dates to schedule the removal of documents per the above retention requirements.

Of course, establishing procedures to ensure a properly maintained PAF is just part of an overall H-1B compliance program. The substantive information housed in the PAF, such as the occupation classification, hours worked (i.e., part-time or full-time), wage rate and wage level, prevailing wage and place of employment, will all come under scrutiny in the event of an H-1B site visit or investigation by USCIS or DOL.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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