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Ensure your Public Access File Compliance Before the End of The Year

The end of the year is a usually a slower time for businesses, so it is a good time to double check that your company is up to date for all immigration compliance. One good way to start is to ensure that you properly have your Public Access Files (PAF) maintained and updated. 20 C.F.R. § 655.760 provides the Department of Labor (DOL) regulations for what records must be made available for the public for H-1B, H-1B1, and E-3 employees. The DOL can come to your business to inspect these, so take this time to ensure your files are up to date!

By regulation, H-1B, H-1B1, and E-3 employers must keep a PAF for all labor condition application (LCAs) ETA form 9035 filed for each employee. The following records must be made available to the public within one working day of filing the LCA:

  1. The submitted LCA;
  2. Rate of pay for the H-1B worker;
  3. Description or summary of the actual wage system;

    Note, the regulation provides an example stating that this can be a memorandum summarizing the system or a copy of the employer’s pay system or scale. The Wage and Hour Division further defines this as “the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigrant’s experience and qualifications for the specific employment in question at the place of employment.”

  4. Prevailing wage rate and its source;
    Commonly, employers utilize the DOL’s OFLC database to determine the prevailing wage for that area.
  5. Documentation that the notice requirement was satisfied;
    This includes the notification to the employee, any union, and the public posting
  6. A summary of the benefits offered to US workers in the same occupational classification as H-1B nonimmigrants
    Note, this does not need to go into information such as costs or details of anything like incentive distributions, but does need to mention the types of benefits offered.
  7. List of entities included as a “single employer;” and
  8. In the event of a corporate change
    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 the effective date;

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

    e. Success entity’s employer identification number.

In the event your company is an H-1B dependent company, there is additional documentation you must submit. If the company is able to file LCAs that qualify as “exempt” they must list the H-1B nonimmigrant workers that are filed as “exempt.” If not, the employer must provide a summary of recruitment methods and displacement inquiry methods in the public access file.

Now is a good time to ensure your access files are up to date and ready for the new calendar year. If you need assistance in reviewing your access files and/or creating a better system, be sure to contact one of our firm’s nonimmigrant visa attorneys!

Being laid off at any time can be stressful, especially if you are on a nonimmigrant visa. Thankfully, the 60-day grace period provides some relief you can use. If you have questions about your situation when laid off, please contact a qualified employment-based immigration attorney to discuss your case.

By: Steven Brown

Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.