With corporations growing across the world, corporations are using foreign workers as employees. The job – which involves some of the same duties that employers in the US have to perform in recruiting foreign employees using the H-1B visa, like developing and keeping a Public Access File (PAF). This file helps you adhere to immigration laws and have openness when hiring. So let’s dive in and learn everything you need to know about how to make and store a Public Access File (PAF) for your H-1B staff in this post.
What is a PDF (Public Access File)?
A Public Access File (PAF) is the documentation that employers are required to produce when hiring an H-1B worker from outside of the United States. The PAF is a document vault, where you can store the worker’s employment and the company’s H-1B filing status. It needs to be public and easily viewed by the public or government agencies that might ask for it.
The PAF also monitors whether employers are operating under the H-1B rules, especially about pay, working conditions, and the hiring of U.S. workers. It also shows that the employer has met all the legal standards to sponsor a foreign worker on an H-1B visa.
When Is It Important to Create A Public Access File?
Employers must prepare a Public Access File (PAF) before or on the date they file the LCA with the Department of Labor (DOL). The LCA is very important for the H-1B petition, so you should design the PAF by the time you file the LCA. The employer could get audited, fined, or even rescinded if the PAF isn’t prepared in time.
What Time Limit Should a Public Access File Be In?
The PAF has to be held for a set amount of time following the H-1B worker’s departure. Employer must retain the PAF for one year from the last day the H-1B worker worked, or until the LCA runs out, whichever comes first. That’s why, even when the H-1B employee departs the employer or their visa runs out, you still need to keep the PAF to remain compliant for another full year.
What Kind of Documents Should Go In the Public Access File?
Employers must attach certain documents to make sure that the PAF is complete and aligned with the H-1B policy. These are the main contents to include in the Public Access File:
LCA (Labor Condition Application): The certified LCA is the first document in the PAF. It’s the basis of the H-1B petition and it is important information such as the worker’s rate of wages and conditions.
- H-1B Petition: Copy of H-1B petition filed with U.S. Citizenship and Immigration Services (USCIS), and any documentation you have.
- Documentation of Wage Rate: Proof that the H-1B worker was paid a wage, including any wage increases, or any change in job title or function.
- Posting Notification: Proof that the employer Posted Notices of H-1B Job Opening in the Workplace for at least 10 consecutive Business Days or that Notice was Provided To Employees.
- Prevailing Wage Determination: If relevant, attach the prevailing wage determination documentation that you received from the Department of Labor (DOL). This is the way of making sure that the worker is compensated at or above the standard wage for his job there.
- Recruitment Materials/Conversations: If the employer has any recruitment activities for the position, supply scans of job postings, ads, and other recruitment materials/conversations.
- Records for Payroll: Keep payroll records (stubs, direct deposit, etc) for the employee to verify that they are receiving the correct wage per the LCA.
- Documents that Document Termination: If the H-1B employee is terminated, the PAF should include records that document the nature of the termination (voluntarily or involuntary).
- Other Job-related Documents: Any other documentation the employee receives from the company (performance evaluations, appraisals, etc.)
So Why It’s Crucial To Keep a PAF
Having an up-to-date and complete PAF is imperative for sponsors of H-1B employees. Not only does it check whether the company is implementing all regulations and rules; but it also opens up the hiring process. Keeping the PAF current and accessible will save you from any potential legal, audit, or DOL/USCIS penalty.
Employers can follow these steps and make sure that the PAF includes all required documentation in order to stay compliant with the H-1B program and show they are committed to fair treatment and the law. A healthy PAF also will make the green card/visa renewal process smoother down the line in the future if need be.
Key Takeaways:
- The Public Access File (PAF) is a must for employers hiring H-1B visa holders. It’s transparent and immigration law-compliant.
- The PAF must be established before or in conjunction with the Labor Condition Application (LCA) submitted to the DOL.
- Employers are required to keep the PAF up for at least a year after an employee leaves the company or when the LCA runs out.
- They will have to contain important documents, such as the LCA, the H-1B petition, wage rate, hiring records, and payroll.
- Keeping a well-developed and comprehensive PAF avoids compliance costs and fines for employers and gives them the impression that they are making good-faith investments in foreign workers.
Compliance and Recordkeeping for H-1B Employers
Navigating the complexities of the H-1B visa program requires strict adherence to compliance and recordkeeping guidelines. Employers sponsoring H-1B workers must maintain accurate documentation and ensure timely updates to avoid penalties and legal issues. This guide outlines key aspects of compliance, common pitfalls to avoid, and best practices for responding to Public Access File (PAF) requests.
Timeliness in Maintaining the Public Access File (PAF)
Employers are required to maintain a Public Access File (PAF) for each H-1B worker. The PAF must be complete and up-to-date at all times. This file typically includes:
- The Labor Condition Application (LCA)
- Documentation of wage rates
- Evidence of the employer’s compliance with labor laws
- Notices of filing
Failure to maintain a proper PAF can lead to significant consequences, including penalties or disqualification from the H-1B program. Employers should regularly review and update the PAF to ensure that all required documents are included and reflect current information.
Audit Preparedness
Preparing for Department of Labor Audits
Employers sponsoring H-1B workers may be subject to audits by the Department of Labor (DOL). It is crucial for employers to ensure that all documentation is complete, accurate, and easily accessible. Key steps for audit preparedness include:
- Organizing Files: Maintain organized records that can be quickly retrieved during an audit.
- Regular Reviews: Conduct periodic internal audits to identify any gaps or discrepancies in documentation.
- Training Staff: Ensure that relevant personnel are trained on compliance requirements and understand the importance of maintaining accurate records.
Being proactive about audit preparedness can help mitigate risks and demonstrate compliance with H-1B regulations.
Documentation for Multiple Workers
Individual PAFs for Each Worker
When an employer sponsors multiple H-1B workers, it is essential that each worker has an individual PAF. However, employers can streamline their documentation process by maintaining a master file containing the same documents applicable to each worker. This approach allows for efficient management while ensuring compliance with regulations.
Key Documents to Include
For each PAF, employers should include:
- The approved LCA for each worker
- Wage documentation that proves compliance with prevailing wage requirements
- Copies of Form I-797 (Notice of Action) indicating approval of the H-1B petition
By keeping these documents organized and accessible, employers can facilitate compliance audits and respond effectively to any inquiries.
Common Pitfalls to Avoid
1. Failure to Post the Notice of Filing
One critical requirement is the posting of the notice of LCA filing at the worksite for a minimum of 10 consecutive days. This notice informs employees about the employer’s intention to hire an H-1B worker and outlines wage information. Failing to post this notice can lead to violations and potential penalties.
2. Incomplete or Missing Documentation
Employers must ensure that all required documents are included in the PAF. Commonly overlooked items include:
- The LCA
- Wage documentation
- Copies of Form I-797
Regularly reviewing documentation helps prevent incomplete files that could result in legal issues.
3. Failure to Maintain the PAF
Employers must have the PAF available for public inspection upon request. Not having this file readily accessible or failing to keep it updated can lead to serious legal and financial consequences. Employers should establish a routine for updating files and ensuring they are compliant with all necessary regulations.
How to Respond to a PAF Request
If a member of the public or a government representative requests access to an H-1B Public Access File, employers must provide it within one business day. This prompt response is crucial for demonstrating compliance with federal regulations.
Designating a Responsible Individual
To streamline this process, employers should designate a specific individual responsible for handling PAF requests. This person should be well-informed about compliance requirements and trained in how to respond effectively to inquiries regarding the PAF.
Best Practices for Handling Requests
When responding to a PAF request:
- Ensure Readiness: Have all necessary documents organized and ready for inspection.
- Maintain Professionalism: Treat all requests seriously and respond courteously.
- Document Requests: Keep a record of all requests received and responses provided, which can be useful in case of future audits or inquiries.
The development and management of a Public Access File (PAF) is an important component of H-1B for the foreign-worker employer hiring process. Keeping the PAF current and up-to-date will not only allow companies to meet U.S. immigration laws but also save them penalties and audits. Although PAFs must be followed, there is much more value to keeping them in check than the risk of skipping this essential requirement. If employers adhere to the steps above, it will be easier for them to get through the H-1B process, and retain foreign workers on their payroll.
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