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Home » A Guide to Public Access Files (PAF)

Public Access Files (PAF) for H-1B Employers: Compliance, Documentation, and DOL Audit Readiness

Employers who sponsor employees in the H-1B, H-1B1 and E-3 visa categories are required to maintain a Public Access File (PAF) for each employee. As the name suggests, all PAFs must be made available for the public to review upon request. The PAFs have to be ready within one working day of filing the Labor Condition Application (LCA)

Before filing a petition to the USCIS, all employers must obtain a Labor Condition Application (LCA) from the Department of Labor (DOL). The employers are not required to provide copies of documents to the public requesting access. However, they must be allowed to capture the information through such means as transcription, scanning, or taking photographs. These Public Access Files (PAF) must then be retained for a period of one year after the employment is terminated or one year after the LCA expires.

There are a few items listed under 20 C.F.R. [655.700(b)(1)(1)] that an employer should include in the Public Access Files for nonimmigrant employees. These should be available for inspection at the principal place of business or the place of employment.

Documents required for the Public Access Files

Labor Condition Application- Employers need to provide a copy of the certified LCA in the PAF .
Wage Rate Documentation-The PAF must include documentation demonstrating the wage rate to be paid to the foreign national employee. Depending on the circumstances, this requirement may be satisfied by the LCA. If not, a signed letter or statement from the employer attesting to the wage it intends to pay may suffice.
Prevailing Wage Documentation-The employer must also keep a copy of the documentation used to determine the prevailing wage in the PAF. This can be accomplished by including an explanation of the source and methodology used.
Advert Documentation- The PAF must include evidence that the advert requirements have been met. This means that the file must include proof of the notice posted at the worksite or, if appropriate, to the collective bargaining representative.
Benefits Memorandum- The PAF must include a benefits memorandum, which details the benefits offered by the employer to its workers. H1B workers must be provided with the same employment benefits as U.S. workers.

What Not to Include in Public Access Files?

It’s recommended not to include these items in the PAFs:

A complete copy of the H-1B petition;
Company Financials;
Confidential Employee Information includes academic records, employment history, and disciplinary records.

Note: It is suggested that the employer retains the PAFs, separately from the personnel files of the nonimmigrant employees.

Retention and Storage requirements

PAFs should be retained for at least one year after the employment ends or the LCA expires.
Payroll records must be kept for three years from their creation.
Keeping PAFs beyond the required period is not recommended, as errors in outdated files may create liability risks.
Employers are advised to print, sign, and store a physical copy of the certified LCA after DOL approval.

DOL Audits of Public Access Files (PAFs)

The U.S. Department of Labor (DOL) ensures H-1B employers comply with Labor Condition Application (LCA) wage attestations and maintain accurate Public Access Files (PAFs). Employers should be aware of the audit process to ensure compliance and avoid penalties.

Key Points About DOL Audits

DOL can audit employers at any time, often due to employee complaints.
Low-wage industries (e.g., agriculture, daycare, food service, healthcare, hotels) are frequently targeted for wage and hour violations.
Employers receive little advance notice of an audit but can request time to gather records.
Employers should designate 1-2 representatives to work with the auditor.
A quiet workspace should be provided for the auditor.
If violations are found, consult legal counsel before settling with the DOL.

Documents Required During a DOL Audit

Employers must provide a list of all H-1B employees and supporting documents, including:

Certified LCA included in the H-1B petition.
Payroll records, including:
- Actual hours worked
- Rate of pay and gross earnings

Deductions from wages, with supporting documents (e.g., vacation requests, personnel memos).

Worksite details, including site location, city, state, and employment period.
Employment timeline, including:
- Date of entry into the U.S.
- Hire and termination dates
- Work commencement and payroll start date

USCIS-related documents, such as:
- Termination notice sent to USCIS and USCIS response
- Petition for Nonimmigrant Worker and USCIS approval forms

Employee contact information, including current or last known address and phone number.

Any liquidated damages or penalties sought or collected, with supporting contracts, lawsuits, and settlement agreements.

Note: Employers should stay prepared and ensure proper documentation to avoid compliance issues during a DOL audit.

Frequently Asked Questions

1. What Happens If an Employer Fails to Maintain a PAF?

Failure to maintain PAFs or meet LCA obligations can result in DOL penalties, back wages, debarment from future visa sponsorships, and reputational damage.

2. Can Public Access Files Be Stored Electronically?

Yes, PAFs can be stored electronically, but employers must ensure they are accessible for public inspection and compliant with DOL regulations.

3. What Should Employers Do If an Employee Complains to the DOL?

Employers should immediately review their PAFs, seek legal guidance, and ensure compliance before responding to DOL inquiries.

How Kodem Law Can Help You?

Staying compliant with PAF regulations and preparing for DOL audits can be challenging. Kodem Law provides expert legal support to help employers navigate these complexities. Our team assists with internal audits, ensuring PAFs meet all legal requirements and that documentation is accurate and complete.

We also help businesses mitigate risks by identifying compliance gaps early and providing guidance on record maintenance. If disputes arise, we offer legal assistance to resolve them efficiently. Ensuring PAF compliance protects businesses from audits, fines, and legal challenges. Contact Kodem Law today for expert support on H-1B compliance and DOL audits!