Managing H-1B compliance is a continuous challenge for U.S. employers hiring foreign talent to meet the rapidly changing business and skill demands. They are required to follow strict regulations and manage comprehensive documentation, which can sometimes lead to errors and compliance risks.
One such crucial responsibility H-1B employers must not overlook is managing and securely storing the Public Access Files (PAFs), as it demonstrates transparency and ensures compliance with the regulatory guidelines.
This article discusses the most common PAF errors and the proactive steps H-1B employers must take to ensure their documentation is complete, timely, and audit-ready.
What is a Public Access File?
A Public Access File, or PAF, is a mandatory requirement for all U.S. employers who hire foreign workers on H-1B, H-1B1, or E-3 visas. This file acts as a repository of records to ensure transparency and compliance with the USCIS guidelines and contains information related to prevailing wage and the Labor Condition Application.
The PAF must be accessible to:
Any public member (including U.S. workers)
Unions representing employees at the worksite (if applicable)
Department of Labor (DOL) officers or investigators
What are Public Access Files
Why is Maintaining a PAF Important?
Maintaining and securely saving the PAF is a legal requirement for U.S. employers, but its importance is not limited to this.
Here’s why a PAF is considered essential:
Legal compliance: All U.S. employers hiring foreign workers must maintain a proper PAF to ensure compliance with the Department of Labor guidelines.
Demonstrates transparency: It reflects the fair professional nature of the employer and promotes a culture of transparency.
Protects the employer during audits: DOL may conduct sudden audits to evaluate the compliance practices of an organization. If the employer has not maintained a proper PAF, they may face serious legal and financial consequences.
Promotes accountability: PAFs encourage employers to standardize processes around wage determination, benefits, and job postings, reflecting the accountable nature of the employer.
Enhances employer credibility and immigration readiness: Employers who have a history of well-maintained PAFs signal reliability and compliance, strengthening their reputation with immigration authorities and prospective foreign employees.
What Documents are Included in a PAF?
Employers are required to create a PAF within 1 day after filing the LCA, and it must contain the following documents:
Certified LCA: The first crucial document to be added to a PAF is the certified copy of the approved LCA (Form ETA-9035).
H-1B petition: Employers must include a copy of the H-1B petition filed with the USCIS.
Wage rate offered: Documentation of the wage rate offered to the H-1B employee.
Prevailing wage determination: Evidence of how the prevailing wage was determined for the specific position, along with the source of determination, such as the OFLC data center, independent survey, job descriptions, etc.
Benefits summary: A list of all the benefits offered to the employee and how they compare to the benefits provided to other U.S. workers.
Recruitment documentation: If required, employers must also add all information related to the recruitment of the H-1B employee, especially in cases involving H-1B dependent employers.
Notice of LCA filing: Physical or electronic proof of LCA notice posting at the worksite, including the posting dates and locations.
Payroll records: Proper wage records to prove the H-1B employee is being paid fairly as compared to other workers.
Termination records: If the employee was terminated, then the employer must add all relevant documentation, including the termination letter, notice sent to USCIS, and offer of return transportation (if applicable).
Additional supporting documents: Any other important documentation used to support the wage level determination, working conditions, summary of corporate change, or attestations made on the LCA.
What Should Not be Included in the PAF?
It is important to understand that documents containing Personally Identifiable Information (PII) must not be included in the PAFs as they are not required for public access and could expose employees to identity theft.
Employers who fail to comply with these requirements violate employee privacy and may breach data protection laws, leading to serious legal consequences, negatively affecting the organization's reputation.
Documents that shouldn’t be added in the PAF include:
A complete copy of the H-1B petition.
Sensitive employee information such as Social Security Numbers, passport details, addresses, academic records, or personal contact information.
Payroll records with sensitive financial details.
Internal correspondence or emails.
Non-public company policies or proprietary documents.
Also, you may ensure to maintain the PAFs separately from employee personnel records of your nonimmigrant employees.
Understanding LCA Notice Posting and PAF Documentation
Many employers struggle to comply with Labor Condition Application (LCA) notice posting requirements when preparing a Public Access File (PAF). According to the Department of Labor, failure to properly post and document the Notice of Filing can result in serious compliance risks.
Here are some key requirements every employer must follow:
Timing of Posting: The LCA notice must be posted at the worksite or shared electronically on or up to 30 days before submitting the LCA to the Department of Labor.
Duration of Posting: The notice must remain posted for at least 10 consecutive calendar days, not business days.
Visibility of Posting: The notice should be placed in two conspicuous locations at the worksite or disseminated using a company-wide electronic notification system (e.g., intranet, email, or bulletin board).
Remote/Hybrid Workers: If the H-1B employee is working remotely, the LCA must still be posted at the employee’s home worksite or via a method accessible to similarly employed individuals.
Note: Employers must create the PAF within one day after filing the LCA, but that doesn’t mean all documents must be included on the same day. Documents such as the certified LCA and wage documentation can be added as they become available.
Common PAF Errors Employers Make
Some common PAF mistakes H-1B employers usually make include:
Failure to create a PAF on time: According to USCIS, all employers hiring foreign workers must create the PAF within one business day of filing the LCA. But many employers fail to make one on time, leading to serious compliance risks such as monetary penalties, back wage orders, and debarment from visa programs.
Missing or incomplete documents: Employers sometimes fail to add the required documents to the PAF, such as the LCA posting notice, wage determination evidence, and other essential records related to the H-1B employee’s employment.
Errors in employee data: Any error in an employee’s employment details, such as the job title, duties, wage-related information, or worksite location, can raise red flags, jeopardizing the compliance of an organization.
Failure to update PAF: If there is any significant change to the job location, duties, or title of the H-1B employee, the employer must inform USCIS and update the PAF accordingly. However, at times, employers overlook this crucial step or unintentionally fail to do the same.
Improper or disorganized PAF: H-1B employers are required to store PAFs in an easily accessible manner, as these files can be required during sudden audits or inspections. However, some employers fail to store them securely, making retrieval hard.
Incomplete wage data: Deleting crucial wage-related details about the actual wage system, prevailing wage rate, or benefits offered to U.S. and H-1B workers.
Missing termination records: When an H-1B employee is terminated, the employer is lawfully required to document all information and add it to their PAF, as failure to do so is considered a serious compliance error on their part.
Consequences of PAF Non-Compliance
Failing to manage and store PAFs securely can lead to serious legal and financial consequences, such as:
Hefty Penalties: The Department of Labor may impose hefty civil fines, with penalties reaching up to $55,570 per violation, depending on the severity and frequency of the errors.
Back wage payments: In case of wage violations, H-1B employers may have to pay back wages to compensate the employees, significantly affecting their finances.
Debarment from the H-1B program: In cases of serious or frequent willful violations, the H-1B employer may be permanently barred from filing H-1B applications in the future, and their present applications may be revoked as well.
Increased audits: DOL may conduct frequent audits to ensure the H-1B employer is maintaining compliance with the regulatory guidelines, which can disturb the routine operations of a business.
Reputational damage: Violations are often published in DOL enforcement records, which can significantly damage the reputation of an organization and affect its position in the industry.
How Can H-1B Employers Maintain PAF Compliance
H-1B employers can take the following actionable steps to ensure compliance with USCIS guidelines and avoid hefty penalties:
Create the PAF on time: Make sure you create the PAF within one business day after filing the LCA.
Include all the required documents: Make a list of all the essential documents that you must add to the PAF and cross-check with it as you are adding them into the file.
Ensure consistency across records: Job titles, wage rates, worksite locations, and other important employee details must remain consistent across the LCA, H-1B petition, offer letters, and internal records.
Update the PAF: If any changes are made to the H-1B employee’s job title, duties, or work location, make sure to inform USCIS and update the PAF accordingly.
Train HR and compliance teams: Provide proper training to your HR and other teams so they are familiar with the H-1B, LCA, PAF, and audit requirements.
Retain records for the required period: When an H-1B employee quits, the employer is supposed to retain the PAF one year beyond the last date of employment under the LCA or for the duration of the LCA, whichever is longer.
Conduct regular internal audits: Create a structured internal audit plan aligned with the DOL guidelines and conduct mock audits to identify potential errors early and mitigate compliance risks.
Consult your legal counsel: Keep your legal counsel updated and consult them in case there is any doubt or concern.
Stay updated on regulatory changes: USCIS may change the existing H-1B and LCA policies or modify them to enhance the transparency of the immigration process. H-1B employers must stay updated to adjust their processes accordingly.
PAF Compliance Tips
Summing Up
All U.S. employers who hire foreign talent on H-1B, H-1B1, and E-3 visas are required to maintain a proper PAF to ensure transparency and compliance with the immigration guidelines.
The PAF must be created on time and should contain all essential documents such as the LCA notice, a copy of the H-1B petition, wage details, and the prevailing wage source. Employers who fail to retain a PAF systematically may face penalties, increased scrutiny, and even debarment from the H-1B program. To avoid these errors, employers must create a structured process and conduct regular audits to ensure compliance.
Streamline Your PAF Compliance with OnBlick
OnBlick helps you stay audit-ready by thoroughly helping you through every step of the H-1B process. We provide customized PAF templates aligned with DOL guidelines that you can directly generate and download from OnBlick’s portal. Whether it’s filing LCA or managing post-H-1B approval compliance, our expert-driven approach helps you mitigate serious compliance risks with ease and precision.
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