Public Access File (PAF) Audits
For every H-1B employee you sponsor, your company is required to maintain a Public Access File (PAF). These files are subject to strict Department of Labor (DOL) rules and can be requested for inspection by any member of the public at any time. Mistakes are common and penalties are steep. At The Law Offices of Luke Bowman (LBL), we conduct meticulous PAF audits to help Michigan employers ensure their files are complete, accurate, and ready for scrutiny, protecting you from costly fines and government investigations.
Ensure your H-1B records are compliant and audit-proof.
Overview: What Is a Public Access File?
A Public Access File, or PAF, is a specific collection of documents that H-1B employers must maintain for each Labor Condition Application (LCA) they file. Unlike a standard personnel file, the PAF must be made available for public inspection within one working day of the LCA being filed.
Why does it matter? The DOL uses the PAF to ensure you are paying the required wage and complying with all H-1B program obligations. Failure to maintain a complete and accurate PAF is a common trigger for DOL audits and can result in significant financial penalties, payment of back wages, and even debarment from using the H-1B program. Proactive compliance is essential to mitigate this risk.
What Must Be in a PAF?
Each PAF must be created and maintained with a precise set of documents. Storing too little—or too much—can lead to a compliance violation. A compliant PAF includes:
- A signed copy of the certified Labor Condition Application (LCA) (Form ETA 9035).
- Documentation of the wage rate to be paid to the H-1B employee.
- A copy of the notice of posting provided to other employees.
- An “actual wage” memorandum explaining the system used to set the wage for the position.
- A prevailing wage determination document from a government or independent source.
- A summary of the company’s benefits plan offered to all employees.
The PAF must be created within one business day of filing the LCA and retained for one year beyond the H-1B employee’s period of employment under that LCA.
Common Mistakes Employers Make
The strict rules surrounding PAFs create many opportunities for error. We frequently find and fix common mistakes, including:
Missing Required Documents
The most common error is simply failing to include all required items, like the actual wage memo or benefits summary.
Storing Prohibited Items
Placing confidential documents like Form I-9s, performance reviews, or personal employee information in a PAF is a serious violation.
Incorrect Wage Data
Failing to properly document the prevailing wage source or the system used to determine the actual wage.
Forgetting Amended Petitions
Not creating a new PAF for each new or amended H-1B petition that requires a new LCA.
Failing to Update
Not updating the file after material changes, such as a change in worksite location.
Poor Recordkeeping
Storing PAFs in unsecured locations or failing to have a clear retention and purging schedule.
“Very good experience working with Luke and his associates, I have been working with this firm for last 6 years, the best part is timely responsiveness, submitting the paperwork work to USCIS…” – Srinivas Gude
Our Audit Process
Our process is designed to be thorough, efficient, and leave you with a compliant, easy-to-manage system.
Complete Review
We conduct a comprehensive audit of your existing PAFs to identify any missing, incorrect, or prohibited documents.
Creation and Remediation
For any missing files, we create new, compliant PAFs from scratch. For existing files, we guide you through the proper correction process.
Standardized Templates
We provide you with standardized templates and checklists to make future PAF creation simple and consistent.
HR Training
We train your team on how to properly maintain the files, respond to public inspection requests, and manage the PAF lifecycle.
Centralization and Access
We help you establish a central, secure location for your PAFs and implement clear access controls.
How We Help Employers
Our goal is to give you peace of mind and insulate your business from risk. We help you:
Avoid DOL Penalties
Our proactive audits find and fix problems before they can lead to costly government fines.
Maintain Audit Readiness
With compliant PAFs on hand, you can respond to any government or public inspection request with confidence.
Manage PAFs Long-Term
We can provide ongoing support through periodic “health checks” to ensure your compliance program remains effective.
Integrate Compliance
We ensure your PAF management is integrated with your broader immigration recordkeeping and I-9 programs for a holistic compliance strategy.
Frequently Asked Questions
Where should we store our Public Access Files?
PAFs should be maintained in a location where they can be readily accessed if requested for public inspection. Many employers keep separate PAF records apart from personnel files to simplify compliance and ensure only appropriate documents are disclosed during an inspection.
How long must a Public Access File be retained?
In general, employers must retain a PAF for at least one year beyond the period of employment covered by the Labor Condition Application. However, related immigration and employment records may be subject to different retention requirements, making a coordinated recordkeeping strategy important.
Who is allowed to inspect a Public Access File?
Unlike many employment records, a Public Access File may be requested by members of the public, labor organizations, government agencies, and other interested parties. Employers must be prepared to provide access to the required contents of the file when legally requested.
Do I need a new Public Access File if I file an amended H-1B petition?
It depends on the nature of the amendment and whether a new Labor Condition Application is required. Significant changes involving work locations, job duties, compensation, or corporate structure may create additional compliance obligations that should be evaluated carefully.
What information should never be included in a Public Access File?
Certain confidential materials, including personal employee information and supporting documentation that is not required for public inspection, generally should not be placed in the PAF. Mixing public and confidential records can create unnecessary compliance and privacy concerns.
Can electronic Public Access Files satisfy Department of Labor requirements?
Yes. Electronic recordkeeping may be permitted if the employer maintains the files in a manner that satisfies applicable accessibility, retention, and production requirements. Employers should ensure electronic systems are organized and capable of producing records promptly if requested.
What happens if the Department of Labor finds problems during an audit?
Potential consequences may include corrective action requirements, monetary penalties, payment of back wages, increased government scrutiny, and, in serious cases, restrictions on future participation in immigration programs. The severity of the outcome often depends on the nature and scope of the violations.
How often should employers review their Public Access Files?
Many employers benefit from annual compliance reviews, especially if they regularly sponsor H-1B employees. Periodic audits can help identify missing documents, outdated records, and procedural issues before they become larger compliance problems.
Are Public Access Files required for every H-1B employee?
Generally, a separate PAF must be maintained for each certified Labor Condition Application associated with H-1B employment. Employers with multiple sponsored employees often manage numerous files simultaneously and should maintain consistent procedures across all cases.
What are the most common reasons employers fail PAF audits?
Common issues include missing wage documentation, incomplete posting records, outdated information, improper retention practices, failure to maintain required supporting documents, and confusion between personnel files and Public Access Files. Regular compliance reviews can help identify and correct these issues before a government inspection occurs.
Protect Your Business from H-1B Compliance Risk
Don’t leave your H-1B compliance to chance. A Public Access File audit is a critical step in protecting your organization from significant DOL penalties.
Contact us today to schedule a consultation.
Call: (810) 522-5405
Email: [email protected]