H-1B Public Access File: What Employers Must Keep and When

Employers who sponsor H-1B workers often focus intensely on the USCIS petition and largely ignore the Department of Labor compliance side of the equation. The Public Access File (PAF) is the piece of LCA compliance that gets overlooked until a DOL investigator requests it during a site visit — at which point the absence of a compliant PAF becomes an immediate audit trigger with financial consequences.

This guide covers exactly what the PAF must contain, when it must be assembled, how long it must be kept, and what DOL looks for when it audits.

The Legal Basis

The requirement stems from the Labor Condition Application process. When an employer files an LCA, they make binding attestations to the DOL about wages and working conditions for H-1B workers. To enforce those attestations, federal law (8 USC §1182(n)) requires employers to make specific documentation available to the public on request — hence "Public Access File."

The obligation is created by DOL regulation at 20 CFR §655.760. Failure to maintain a compliant PAF is itself a violation subject to civil monetary penalties and potential debarment from the H-1B program, entirely separate from any underlying wage or working condition violations.

The Assembly Timeline

The PAF must be compiled within one working day of filing the LCA with the DOL. Not one day after certification — one day after filing. This distinction matters because LCA processing can take a week or more. The employer cannot wait for the certified LCA to come back before starting the PAF.

The practical workflow:

1. Day 1: Employer files the ETA-9035 via the FLAG system
2. Day 2 (by close of business): PAF must be assembled and available for inspection

If the LCA is rejected or denied, the PAF requirement is moot. But it must be ready from the filing date in case of any inspection request during the processing window.

Required Contents of the PAF

1. A signed copy of the certified LCA (Form ETA-9035 or 9035E)

Once the DOL certifies the LCA (typically within 7 business days), the certified copy must be added to the PAF. The initial PAF assembled on Day 2 can reference the pending LCA application — once certified, it replaces the pending version.

2. A statement of the actual wage paid to the H-1B worker

This must specify the actual wage being paid in dollars per hour or annual salary. "Prevailing wage" is not the same as actual wage — this document states what the worker is actually receiving.

3. A memo explaining the actual wage system

This memo documents the basis for the actual wage determination: what compensation system the employer uses, how the H-1B worker's pay compares to other workers with "similar experience and qualifications" at the same employer performing the same duties. This is one of the most common PAF deficiencies — employers include the wage but omit the methodology explaining how that wage was determined to be compliant.

For employers with a formal salary banding system, this is usually a description of the band and how the worker's position within it was determined. For smaller employers without formal salary structures, this requires a written narrative explaining the basis for the wage.

4. Documentation of the prevailing wage determination

This must identify the source used to determine prevailing wages and the resulting prevailing wage figure. The most common sources are:

• The DOL's OEWS Online Wage Library via the FLAG system (for the applicable SOC code and MSA)
• A private survey that meets DOL acceptability requirements (less common for most employers)
• A DOL-issued prevailing wage determination (used for PERM cases)

The documentation should include the SOC code used, the geographic area, the wage level selected, and the resulting prevailing wage. Screenshot or print the FLAG lookup at the time of LCA filing — wage data is updated periodically and the lookup that was in effect at filing time is what matters for the PAF.

5. A benefits summary comparing H-1B workers to US workers

This document must show that the employer offers the H-1B worker the same benefits it offers to US workers in the same occupation on the same basis. This means comparable health insurance access, retirement plan access, and other fringe benefits — or a written explanation of any differences. If H-1B workers are treated differently than US workers in the same role (for example, excluded from a bonus program that other employees receive), that disparity must be documented and must be justified on a non-discriminatory basis.

6. Documentation of the wage posting/notice

A copy of the workplace notice that was posted to inform US workers of the LCA filing. This can be either a physical posting log (date posted, location of posting) or documentation of electronic notice distribution. For remote workplaces, the electronic notice must be specifically designed to reach the workers at the affected worksite.

What Does NOT Go in the PAF

The PAF is not the same as the petition file. The following documents are typically maintained separately as part of the employer's H-1B petition records and should not be placed in the publicly accessible PAF:

• The I-129 petition
• The beneficiary's immigration documents (I-94, passport)
• Attorney-client communications
• Business plans or trade secrets

The PAF is accessible to the public on request. This means competitors, disgruntled former employees, or investigative journalists can request it. Do not include anything in the PAF that you wouldn't want publicly disclosed.

Retention Period

The PAF must be retained for one year following the end of the LCA validity period or one year after the beneficiary's employment under that LCA ends — whichever is longer. For a three-year H-1B LCA, that means the PAF must be kept for up to four years from the initial LCA filing date.

When the LCA expires and a new LCA is filed for an extension, a new PAF is required for the new LCA. Old PAFs from expired LCAs must still be retained through the applicable retention period even as you maintain active PAFs for current LCAs.

Remote and Hybrid Work Complications

Pre-2020, the PAF was straightforwardly tied to a physical worksite. With the proliferation of remote work, the DOL has issued guidance clarifying that:

• For remote H-1B workers, the employer must post the LCA notice at the worker's home location (treated as a worksite) or use electronic notice that directly reaches that worker
• For hybrid workers regularly splitting time between multiple locations, each regular work location may require a separate LCA and PAF if it is in a different MSA

The DOL's Project Firewall initiative, which has sharply increased the number of employer site visits and LCA compliance audits since 2025, specifically targets remote and hybrid arrangements where employers failed to update LCAs for changed work locations. The investigators cross-reference the MSA on the LCA against payroll records showing the worker's actual location during the period in question.

What DOL Investigators Look For

During a site visit, DOL Wage and Hour Division investigators will request the PAF for any H-1B workers at that location. The investigators specifically look for:

• Whether the PAF was assembled within the required timeframe (they compare the LCA filing date to internal company records)
• Whether the actual wage stated in the PAF matches what payroll records show was actually paid
• Whether the prevailing wage documentation matches the LCA's certified prevailing wage (discrepancies suggest the employer used incorrect data)
• Whether the benefits comparison is present and complete
• Whether the worker posting notice was properly executed

Employers found to have no PAF, an incomplete PAF, or a PAF that contradicts payroll records can face back-pay orders, civil penalties, and debarment from the H-1B program. Investigators have authority to expand the scope of an audit beyond the initial trigger — a PAF deficiency discovered during a site visit about an unrelated matter can lead to a full payroll audit of all H-1B workers.

For a complete LCA compliance checklist, the wage attestation documentation templates, and a step-by-step guide to setting up your employer's H-1B compliance system, see the US H-1B Specialty Occupation Visa Guide.