Introduction
The Public Access File (PAF) is not a mere formality in H-1B compliance — it is a statutory requirement under the Department of Labor (DOL) regulations, codified at 20 C.F.R. § 655.760. Employers must maintain a PAF for each H-1B worker to demonstrate compliance with the Labor Condition Application (LCA) attestations. A complete and accurate PAF protects employers during DOL investigations and mitigates the risk of significant penalties. In the current compliance landscape, particularly with the introduction of the new $100K wage rule, employers must be more vigilant than ever.
Legal Foundation of the PAF
Under the Immigration and Nationality Act (INA), employers filing H-1B petitions must submit an LCA to the DOL, attesting to key conditions regarding wages, working conditions, and non-displacement of U.S. workers. The DOL mandates that employers maintain a PAF to make certain documents available for public inspection, ensuring transparency and accountability.
Key statutory references:
- INA § 212(n)(1) – outlines employer obligations regarding wages and working conditions.
- 20 C.F.R. § 655.760 – specifies PAF content and availability requirements.
Why Every Possible Detail Matters
The PAF must be comprehensive and precise because:
- Burden of Proof on Employers
During audits or investigations, the employer bears the burden of proving compliance. Missing or incomplete documentation can be construed as noncompliance, even if the employer acted in good faith. - Risk of Civil Penalties
Failure to maintain proper PAFs can result in civil monetary penalties, debarment from the H-1B program, and repayment of back wages. - Public Accountability
Since the PAF is accessible to the public, any omission or inconsistency can expose the employer to scrutiny not only by the DOL but also by competitors, advocacy groups, or disgruntled employees.
Core Components of the PAF
According to 20 C.F.R. § 655.760, the PAF must include at minimum:
- Copy of the certified LCA.
- Documentation of the wage rate to be paid to the H-1B worker.
- Explanation of actual wage system (how wages are determined for similarly situated employees).
- Prevailing wage source and explanation of determination.
- Summary of benefits offered to U.S. workers and H-1B workers.
- Proof of notice (posting notices at the worksite or notifying the bargaining representative).
- List of entities with secondary placement, if the H-1B worker is placed at a third-party site.
Employers should also maintain supporting evidence such as:
- Internal wage memos and pay structure.
- Organizational charts showing similarly employed workers.
- Copies of postings or electronic notifications.
The New $100K Wage Rule and Its Impact on PAFs
With the $100,000 minimum salary rule for new H-1B cap petitions expected to take effect, PAF maintenance becomes even more critical.
- Application to New Cap Petitions: The $100K threshold applies to new H-1B petitions under the annual cap, not to transfers, extensions, or amendments.
- Prevailing Wage Disclosures: Employers must ensure the PAF demonstrates compliance not only with prevailing wage standards but also with the $100K baseline when applicable.
- Risk of Misinterpretation: If the PAF does not clearly articulate why a petition is exempt (e.g., it is a transfer or extension), employers risk unnecessary audits or denials.
Employer Compliance Obligations
Employers should adopt a best practices approach to PAF compliance:
- Regular Audits
Conduct internal reviews of PAFs at least annually to ensure accuracy and completeness. - Consistency Across Records
Payroll records, LCAs, and PAFs must be aligned. Discrepancies (e.g., different addresses on pay stubs vs. LCAs) invite scrutiny. - Detailed Documentation
Go beyond minimum requirements: maintain explanatory memos, correspondence, and internal compliance policies. - Employee Training
HR and payroll staff should be trained to recognize PAF obligations and maintain uniformity across employment records.
Consequences of Non-Compliance
Employers who fail to maintain proper PAFs face:
- Civil fines up to thousands of dollars per violation.
- Debarment from the H-1B program for repeated or wilful violations.
- Reputational damage, particularly if noncompliance is exposed through public inspection.
Immigration Fleet Law Firm’s Recommendations
At Immigration Fleet Law Firm, PLLC, we advise employers to:
- Develop a PAF compliance checklist aligned with DOL regulations.
- Document proactively rather than reactively — include explanatory notes wherever ambiguity exists.
- Address wage issues transparently, especially under the new $100K wage rule.
- Engage immigration counsel for periodic PAF audits to ensure legal defensibility.
Conclusion
The Public Access File is not a technicality — it is a compliance safeguard and a public accountability measure. With heightened scrutiny in the current immigration climate and the rollout of the $100K wage rule, employers must ensure their PAFs cover every possible detail. Proactive compliance reduces exposure to liability, protects business continuity, and demonstrates good-faith adherence to U.S. immigration law.
Immigration Fleet Law Firm remains committed to guiding employers through these evolving obligations, ensuring that compliance with the law translates into protection for both the company and its foreign national employees.
