H-1B Public Access File Requirements (What Employers Must Maintain)

Employers hiring H-1B workers face strict documentation requirements beyond filing petitions with USCIS. The Department of Labor requires every H-1B employer to create and maintain a Public Access File for each Labor Condition Application filed, and these files must be available for inspection by any member of the public within one working day of request.

If the Department of Labor discovers missing or improper public access files during an investigation, audit, or site visit, employers face civil monetary penalties and potential debarment from the H-1B program. For businesses that depend on H-1B workers to fill specialized positions, maintaining compliant public access files protects against violation findings and potential penalties during any DHS or DOL investigation or enforcement action.

What is an H-1B Public Access File?

The Public Access File (PAF) is a collection of documents that H-1B employers must maintain according to 20 CFR § 655.760 and the Immigration and Nationality Act § 212(n). The file demonstrates compliance with Labor Condition Application attestations and proves that hiring H-1B workers won’t adversely affect U.S. workers’ wages or working conditions.

Unlike personnel files or private payroll records, public access files are public. Any person or group can request to view these files, and employers must make them available within one working day. This includes DOL investigators during audits, competing employers, labor unions, displaced workers, or any member of the general public.

Per 20 CFR § 655.760(c), the public access file must be physically located at either the employer’s principal place of business in the United States or at the H-1B worker’s place of employment.

Required Documents for All H-1B Employers

According to 20 CFR § 655.760(a), the following materials must be available within one working day of filing the Labor Condition Application:

The certified LCA. This includes Form ETA 9035 or ETA 9035E signed by both the DOL certifying officer and the employer’s authorized representative.

Rate of pay for the H-1B worker. Documentation showing the actual wage the employer will pay, which must equal or exceed the higher of the prevailing wage or the employer’s actual wage for the position.

Description of the actual wage system. A full, clear explanation of how the employer calculated the actual wage, including any periodic increases the system provides.

Prevailing wage documentation. A copy of the documentation used to establish the prevailing wage, including a general description of the source and methodology. The underlying individual wage data is not public but must be available to DOL in enforcement actions.

Proof of notice requirements. Documentation proving that required workplace notices were posted for at least 10 consecutive business days in at least two conspicuous locations at each place of employment, or that notice was provided to the collective bargaining representative if applicable.

Benefits summary. A summary of benefits offered to U.S. workers in the same occupational classification as H-1B workers, and a statement explaining how benefits are differentiated when not all employees receive the same benefits.

Single employer list. If the employer uses the Internal Revenue Code definition of “single employer” for H-1B dependency calculations, a list of entities is included in that determination.

Corporate change documentation. In the event of corporate restructuring, a sworn or notarized statement by the successor entity accepting all liabilities of the predecessor entity, a list of H-1B workers transferred, each affected LCA number and effective date, a description of the successor entity’s actual wage system, and the successor entity’s employer identification number.

Additional Requirements for H-1B-Dependent Employers

An employer is H-1B-dependent if it has:

• 25 or fewer full-time equivalent employees of whom at least  8 are H-1B workers
• 26 to 50 full-time equivalent employees of whom at least 13 are H-1B workers
• 51 or more full-time equivalent employees of whom 15 percent or more are H-1B workers

H-1B-dependent employers and willful violators must include two additional items in public access files:

List of exempt H-1B workers.

If the employer indicates the LCA will be used only for exempt workers, the file must contain a list of those exempt H-1B nonimmigrants. Per 20 CFR § 655.737, exempt workers are those receiving at least $60,000 in annual compensation (excluding benefits) or holding a master’s degree or higher in a field related to the position.

Recruitment summary.

If the employer hired any non-exempt H-1B workers, the file must include documentation summarizing the principal recruitment methods used and the timeframes for recruiting U.S. workers before hiring H-1B nonimmigrants.

How Long Must Public Access Files Be Retained?

Public access files must be retained for one year beyond the last date on which any H-1B worker is employed under the LCA, or if no workers were employed under the LCA, one year from the date the LCA expired or was withdrawn.

If a complaint is filed regarding LCA compliance, the file must be kept until the complaint is resolved, regardless of the standard retention period.

Payroll records are separate from public access files and must be retained for three years from the date of creation. These records are not part of the public access file but must be available to DOL during investigations.

What Access Must Employers Provide?

Employers are not required to provide copies of documents to the public. However, any member of the public requesting access must be allowed to capture the information through transcription, scanning, or taking photographs.

Denying public access to properly requested files constitutes a DOL violation in itself, separate from any issues with file content or completeness.

Penalties for Non-Compliance

The Department of Labor can assess civil money penalties for H-1B violations, including failures to maintain proper public access files. Penalty amounts vary based on the nature and severity of the violation, with more serious violations carrying significantly higher penalties.

Violations of public access file requirements that impede the Department of Labor’s ability to determine whether an H-1B violation has occurred—or that prevent members of the public from having information needed to file complaints—can result in civil monetary penalties.

Beyond monetary penalties, non-compliance can result in:

• Back wage orders requiring payment to affected H-1B workers
• Placement on the H-1B Willful Violators List, subjecting the employer to random DOL investigations for five years
• Debarment from the H-1B program and other employment-based visa categories, with minimum debarment periods ranging from one to three years, depending on violation severity

The Department of Labor considers multiple factors when determining penalty amounts, including the employer’s previous violation history, the number of workers affected, the gravity of violations, good faith compliance efforts, and the extent of financial gain from violations.

Maintaining Compliant Public Access Files

Create a standardized process for public access file creation and maintenance. Establish files no later than LCA submission, use consistent organizational methods, track retention periods, and conduct periodic internal audits.

The public access file requirement applies to H-1B, H-1B1, and E-3 visa classifications. Employers sponsoring workers in multiple classifications need separate files for each LCA filed.

Need guidance on H-1B compliance and public access file requirements?

Contact our H-1B Visa Lawyer to discuss your documentation obligations.