H-1B Public Access Files: Employer Compliance Guide

Employers must create and maintain a public access file (PAF) for each H-1B petition, and failure to do so can result in fines, back wages, or debarment from the program. This article explains what the file must contain, where to keep it, when to update it, and how to avoid the most common compliance mistakes.

What Is a Public Access File?

The public access file is a physical or electronic folder that documents your compliance with H-1B wage and working condition obligations. Under Department of Labor (DOL) regulations, every employer that files an H-1B petition must create this file no later than the day the Labor Condition Application (LCA) is filed with DOL. The file must be available for public inspection within one working day of the LCA being filed, and it must remain available until one year after the H-1B worker’s last day of employment under that petition.

The purpose of the file is transparency: it allows the public, including other workers, to verify that the employer is paying the required wage and offering working conditions that do not adversely affect similarly employed U.S. workers. The file does not contain confidential business information or personal data beyond what is legally required.

Required Contents of the Public Access File

The DOL mandates that the public access file contain specific documents. Missing any one of them is a violation, even if the underlying H-1B petition is approved. The required items are:

• A copy of the certified LCA (Form ETA-9035 or ETA-9035E) for the specific H-1B worker.
• A summary of the wage rate and terms and conditions of employment, including the actual wage and the prevailing wage paid to the worker.
• A copy of the document that establishes the prevailing wage, such as a DOL National Processing Center determination, an independent authoritative source survey, or another valid source.
• A copy of the notice that was provided to U.S. workers about the filing, such as the notice posted at the worksite or the electronic notice sent to the collective bargaining representative.
• If the employer uses a third-party worksite, a copy of the contract or other documentation showing the employer has control over the worker’s employment conditions.
• A copy of the H-1B petition (Form I-129) and any supporting documents that were submitted to USCIS, though some employers redact confidential information.
• If the employer is an H-1B-dependent employer or a willful violator, additional documentation showing that it took good-faith steps to recruit U.S. workers and offered the job to any equally qualified U.S. applicant.

Note that the file must contain the actual wage paid, not just the prevailing wage. The actual wage is the wage rate the employer pays to all individuals with similar experience and qualifications for the specific job. If the employer pays a higher wage to a U.S. worker in the same position, the H-1B worker must receive at least that higher wage.

Where to Keep the File and Who Can See It

The public access file must be maintained at the employer’s principal place of business in the U.S., or at the worksite where the H-1B worker is employed. If the worker is placed at a third-party site, the file must be kept at the employer’s own office, not at the client’s location. The file must be available for public inspection during normal business hours, and you must provide a copy within a reasonable time after a request.

Anyone can request to inspect the file, including competitors, labor unions, or the general public. You cannot require the requester to state a reason. However, you may redact certain confidential information, such as trade secrets, proprietary data, and personal identifying information of the worker (like Social Security number and immigration status). The DOL has stated that you may redact the worker’s home address and other private details, but you must keep the required wage and condition information intact.

Common Compliance Mistakes and Penalties

The most frequent violation is failing to create the file at all, or creating it after the LCA is filed. Other common mistakes include:

• Not updating the file when the worker’s wage changes or when the worker is moved to a new worksite.
• Using an outdated LCA that does not match the current job duties or location.
• Missing the prevailing wage documentation, or using a source that does not meet DOL standards.
• Failing to include the actual wage data, which is a separate requirement from the prevailing wage.
• Not including the required notice to U.S. workers, or failing to post the notice at the worksite for the required 10 days.

Penalties for non-compliance can be severe. DOL may impose civil money penalties of up to $1,000 per violation, order back wages for the H-1B worker and similarly situated U.S. workers, and debar the employer from using the H-1B program for at least one year. In cases of willful violation, the penalty can be up to $35,000 per violation. Additionally, USCIS may deny future H-1B petitions if it discovers a pattern of non-compliance.

How to Create and Maintain the File

To stay compliant, follow these steps:

1. Create a separate file for each H-1B worker, even if multiple workers are covered by the same LCA. The file should be labeled with the worker’s name and the LCA number.
2. Assemble the required documents before the LCA is filed. Do not wait until after approval.
3. Keep a log of any requests for inspection, including the date and the requester’s name, to demonstrate that you are providing access.
4. Update the file immediately when any of the following occur: the worker’s wage changes, the worker moves to a new worksite, the LCA is amended, or the worker’s employment ends.
5. Retain the file for one year after the worker’s last day of employment under the H-1B petition. If there is a DOL investigation, keep the file until the investigation is resolved.

It is a good practice to review the file periodically, at least once a quarter, to ensure that all documents are present and current. Many employers use a checklist to verify that each required item is in place.

Public Access File vs. Other H-1B Records

Do not confuse the public access file with other records you must keep, such as the LCA itself, the H-1B petition, and payroll records. The LCA is filed with DOL and is part of the public access file, but you must also maintain a separate copy of the certified LCA in your own records. The H-1B petition is filed with USCIS and is not part of the public access file, but you may include a copy for reference. Payroll records, which show the actual wage paid, are not part of the public access file but must be kept for DOL inspection upon request.

Additionally, you must post a notice of the LCA filing at the worksite for 10 days, and you must provide a copy of the LCA to the H-1B worker. The public access file is separate from these notices, but the notice itself must be included in the file.

Frequently Asked Questions

Do I need a public access file for each H-1B worker or one per LCA?

You need a separate public access file for each H-1B worker, even if multiple workers are covered by the same LCA. Each file must contain a copy of the LCA, the wage information for that specific worker, and the other required documents. If you have 10 H-1B workers on one LCA, you must create 10 files.

Can I keep the public access file electronically?

Yes, the DOL allows electronic maintenance, provided that the file is accessible for inspection and printing during normal business hours. You must ensure that the electronic file is organized and that you can quickly produce a copy upon request. If you use an electronic system, you should have a backup in case of technical failure.

What if my H-1B worker is placed at a client’s site?

You must still maintain the public access file at your own office, not at the client’s location. The file must contain documentation showing that you, the employer, have control over the worker’s employment, such as a contract with the client that specifies the wage and working conditions. The DOL has been scrutinizing third-party placements, so ensure that the contract is clear and that you are actually paying the worker.

Can I redact the worker’s name from the public access file?

No, the file must contain the worker’s name because the LCA identifies the worker. However, you may redact the worker’s Social Security number, home address, and other personal information that is not required. The DOL has stated that the worker’s name is necessary to verify that the correct wage is being paid.

What happens if I fail to create the public access file?

Failure to create the file is a violation of the LCA regulations. DOL can impose a civil money penalty and order back wages. In addition, USCIS may deny future H-1B petitions if it finds that you have not complied with the program requirements. It is not a defense that the H-1B petition was approved; the public access file is a separate obligation.

How long do I need to keep the file after the worker leaves?

You must keep the public access file for one year after the worker’s last day of employment under that H-1B petition. If there is a pending DOL investigation, you must keep the file until the investigation is concluded, even if that extends beyond one year.

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