Creating and Maintaining Public Access Files for DOL Audits

Published On
Sep 18, 2020
Read Time
4.5 Minutes
OnBlick Inc

When hiring foreign talent, employers must ensure that the immigration petition process is carefully monitored. Also, several documents have to be maintained to stay compliant with the myriad labor laws. Proper creation and maintenance of Public Access Files is one of the tasks that can help you handle the Department of Labor audits effectively. Here is a gist of everything you need to know in this regard.

What is a Public Access File?  

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. This has to be ready within one working day of filing the Labor Condition Application (LCA). Also, as per government rules, the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs.

There are a few items listed under 20 CFR 655.760 that an employer should include in the Public Access Files of H-1B nonimmigrant employees. These should be available for inspection at the principal place of business or the place of employment.

What are the documents to be included in Public Access Files?

(A) All Labor Condition Applications with instructions (Form ETA-9035/ ETA-9035E with Form ETA‑9035CP)submitted to the U.S. Department of Labor Employment and Training Administration (ETA) by your firm for the employment of H-1B workers during the designated investigative period

The employers who chose ETA-9035E are suggested to retain the original signed LCA in the PAF.

(B) Documentation of the wage rate to be paid the H-1B worker

This means the precise wage paid to the worker and not an estimate of the wages.

(C) A full, clear, explanation of the system used to set the actual wage you paid for all occupations in which the H-1B workers were employed during the designated period

You may refer to samples of the actual wage memo.

(D) The documentation used to establish the prevailing wage for all occupations and all areas of employment in which the H-1B workers were employed during the designated period

The prevailing wage rate is typically established by a wage survey, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data, which can be accessed through the Department of Labor’s website.

(E) A copy of the document(s) used to satisfy the notification requirements with respect to the employment of the H-1B workers

To prove that you have complied with the LCA notice requirement, see to it that the notice is dated, and a copy of the actual notice posted in two locations at each place of employment listed on the LCA is included. If you have electronically posted the notice, you have to maintain a copy of the same.

(F) A summary of benefits offered to U.S. workers in the same occupation as the H-1B workers

One should never forget that the failure to compensate H-1B employees at the same level as U.S. employees in similar positions can result in fines and penalties.

(G) A list of entities included as a “single employer”

This applies to you if there are multiple business entities under one umbrella organization.

(H) Summary of Corporate Change (if there is a qualifying corporate change during the H-1B employment)

In such a case, the following items have to be included:

a. Sworn or notarized statement by the successor entity accepting all liabilities of the predecessor entity;

b. List of H-1B workers transferred to the successor entity;

c. Each affected LCA number and effective date;

d. A description of the successor entity’s actual wage system;

e. Successor entity’s employer identification number.

(I) Additional Attestations and Documentation for “Dependent Employer” and “Willful Violators

Those employers considered to be H-1B dependent or willful violators should maintain some additional records such as the list of exempt H-1B worker(s); a summary of recruitment methods used and the time frames of the recruitment of U.S. Workers; and documentation to show the manner used to demonstrate compliance with the non-displacement Obligation (whether direct or indirect).

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

What Not to Include in Public Access Files? 

When you’re trying to know about the Do’s, you should know about some of the Don’ts as well, right? So, here you go.

It's recommended to not include these items in the PAFs.

Additionally, you may ensure to maintain the Public Access Files separately from employee personnel records of your nonimmigrant employees.

Retention and Storage requirements

The PAFs must be removed one year from the end of the period covered by the FormETA-9035, Labor Condition Application (LCA), or an LCA withdrawal. It's suggested that employers should not retain PAFs longer than the regulations requires. PAFs saved beyond the retention period could cause unnecessary liabilities if they contain errors or mistakes. Moreover, the employers must maintain required payroll records for three years from the date(s) of the creation of the record(s).

Now that the DOL’s Office of Foreign Labor Certification approved the electronic storage of PAFs, employers can choose to go paperless. Just that you should make sure to remain consistent irrespective of the method of storage preferred. However, some experts also advise the employers to print, sign, and retain a physical copy of the LCA containing the original signature.

What happens during DOL audits of PAFs?

Though it says that any random person can request for documents in the PAF, the picture that comes to an employer’s mind is that of a DOL investigator inspecting the same in the event of an audit. The DOL’s Wage and Hour Division (WHD) ensures that H-1B petitioners are complying with the LCA wage obligation attestations and keeping accurate PAFs.

Besides the items mentioned in the checklist above, a list of every H-1B nonimmigrant worker employed during the period under investigation and a report with copies of supporting documents of the following information for each worker listed should be made ready for inspection:

Burden and penalties

In short, it becomes important to carefully review the PAF requirements and develop a process that ensures consistency and accuracy. It is suggested to designate a PAF internal expert and perform regular audits. You must also have a plan if an officer shows up at your office door without notice. You may contact your attorney as soon as the officer arrives. The DOL officer could allow your representative to write down all questions and discuss it with the attorney before responding.  Failure to maintain PAFs can result in increased scrutiny of a company’s H-1B petitions and monetary fines. This could also lead to debarring you from future access to the H-1B program and other immigrant programs for at least a year.

The DOL has the right to audit employers at any time. Thus, the employers should prepare themselves for scrutiny since WHD may assess civil money penalties for violations. Such penalties depend on the type and severity of the violation. In other words, your company has to ensure that it is prepared for a DOL audit or an FDNS site visit at any time.  Then, the only solution lies in improving your preparedness for compliance.

How does OnBlick help you with your PAFs?

OnBlick’s PAF automation feature auto-generates and retains a Public Access File within seconds after you upload an in-progress LCA. Also, you will be able to view and access initial and completed PAFs right from your dashboard. OnBlick provides you a set of default templates as per the DOL requirement. But, we assure you that you have the liberty to create new templates or add/ remove/ edit any of the templates as per your organizational requirements. You can now store and retain all the documents till the retention period. We make you audit-ready by maintaining all the H-1B documents under one system. 

Why wait? Book your demo to know how we can make storage and retention of PAFs a piece of cake for you.

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