How Long Must a Public Access File Be Retained? A Clear Guide to PAF Retention Under 20 CFR § 655.760(c)

by Roman Zelichenko

Regulations require that Public Access Files (PAFs) be maintained for at least one year after either the Labor Condition Application (LCA) expiration date or the last date of employment. But a more nuanced question often arises in practice: if employment ends before the LCA expires and the employer does not withdraw the LCA, which date actually controls the PAF retention period?

This is not just a technical compliance issue. It has become increasingly important as enforcement activity around H-1B compliance has intensified and as employers and immigration practitioners are expected to demonstrate not only that they understand the rules, but that they are operationalizing them correctly.

Why PAF Retention Questions Matter More Today

Increased Enforcement of H-1B Compliance

In recent years, the Department of Labor’s Wage and Hour Division has increased its focus on H-1B program compliance, including record-keeping and wage obligations. These enforcement efforts, sometimes referred to in industry discussions as “Project Firewall,” reflect a broader shift toward proactive, data-driven investigations of employers sponsoring foreign workers.

Official guidance from the Department of Labor emphasizes that employers must maintain proper documentation to demonstrate compliance with LCA requirements, including the creation and retention of Public Access Files:
https://www.dol.gov/agencies/whd/immigration/h1b

Industry Awareness and Audit Preparedness

At the same time, reporting from sources such as Bloomberg Law has highlighted an increase in immigration-related enforcement actions, particularly around documentation and wage compliance. As a result, organizations are taking a closer look at whether their internal processes—especially around PAF retention—would withstand scrutiny in an audit.

What the Regulation Actually Says: 20 CFR § 655.760(c)

The Governing Rule

The governing rule for Public Access File retention is set forth in 20 CFR § 655.760(c):
https://www.ecfr.gov/current/title-20/section-655.760

The regulation provides:

“The employer shall retain copies… for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the labor condition application or, if no nonimmigrants were employed… one year from the date the labor condition application expired or was withdrawn.”

Two Distinct Public Access File Retention Scenarios

Although the language is concise, it establishes two clearly different retention frameworks:

  • If an H-1B worker was employed under the LCA
    The retention period runs one year from the last date of employment
  • If no H-1B worker was ever employed under the LCA
    The retention period runs one year from the LCA expiration or withdrawal date

These two triggers are mutually exclusive, and determining which one applies is essential for compliance.

Applying the Rule to a Common Real-World Scenario

Scenario: Employment Ends Before LCA Expiration

Consider a situation where:

  • An H-1B employee begins work under a valid LCA
  • The employee leaves the company before the LCA expires
  • The employer does not withdraw the LCA
  • The LCA remains valid through its original end date

Which Date Controls PAF compliance?

In this scenario, the correct interpretation is that the last date of employment controls the PAF retention period.

Because the LCA was used (that is, an H-1B worker was actually employed under it) the regulation directs the employer to follow the employment-based timeline. The expiration or withdrawal trigger only applies where no employment occurred.

Key Takeaways

  • Once employment occurs, retention is tied to employment, not the LCA lifecycle
  • The LCA expiration date does not become the operative trigger in this scenario
  • Withdrawal is not required to establish the retention timeline

Why This Distinction Is Often Misunderstood

Over-Reliance on LCA Expiration Dates

In practice, many employers default to using the LCA expiration date as the primary benchmark for retention. This is often because expiration dates are fixed and easier to track. However, this approach can lead to incorrect conclusions when employment ends earlier.

Simplified Guidance That Misses Nuance

Another source of confusion comes from simplified explanations, such as “retain the PAF for one year after termination or withdrawal.” While directionally correct, this type of guidance does not fully capture the conditional structure of the regulation, particularly the distinction between used and unused LCAs.

Practical Implications for Employers

Documentation Requirements in an Audit

In the event of a Department of Labor audit, employers may need to demonstrate that PAFs were retained for the correct period. This often requires supporting documentation, including:

  • Payroll records showing the last date of wages paid
  • HRIS data reflecting employment status
  • Termination or resignation documentation

Without clear documentation, it may be difficult to substantiate that retention requirements were met.

Operational Challenges in Managing PAFs

Many organizations still manage Public Access Files through manual or decentralized processes. Common challenges include:

  • Files stored across multiple systems or locations
  • Inconsistent tracking of retention deadlines
  • Lack of alignment between HR data and compliance documentation

These issues can make it difficult to apply regulatory rules consistently.

The Risk of Over-Retention and Under-Retention of PAFs

Over-Retention Risks

  • Retaining files longer than necessary may create unnecessary data exposure
  • Excess data retention can raise internal governance or privacy concerns

Under-Retention Risks

  • Premature deletion of PAFs can lead to noncompliance findings
  • Inability to produce documentation during an audit may result in penalties

Both risks stem from misinterpreting or inconsistently applying the retention rule.

Best Practices for Managing Public Access File Retention

Align Retention with Employment Data

Employers should ensure that retention timelines are based on actual employment dates rather than defaulting to LCA expiration.

Standardize Internal Processes

  • Apply consistent retention calculations across all cases
  • Establish clear ownership of PAF management within the organization

Maintain Supporting Documentation

  • Keep employment records accessible and organized
  • Ensure that documentation aligns with PAF retention timelines

Conduct Periodic Compliance Reviews

Regular internal audits can help identify gaps and ensure that retention practices are being applied correctly.

The Role of Technology in PAF Compliance

Benefits of Centralized Systems

Technology-driven solutions can significantly improve compliance by automating LCA posting and PAF creation, document retention tracking, and providing a clear audit trail for all actions

Reducing reliance on email-based and manual workflows helps eliminate inconsistencies and ensures that retention rules are applied uniformly across all cases. That's why platforms like LaborLess are designed to address these challenges by centralizing LCA posting and PAF management, allowing employers and law firms to maintain compliance more effectively.

While the regulation itself is clear, applying it consistently requires careful coordination between HR data, compliance processes, and documentation practices. As enforcement activity continues to increase, organizations that take a structured and proactive approach to PAF management will be better positioned to meet regulatory expectations.

So if you are reviewing your Public Access File processes or looking to improve your H-1B compliance framework, now is the time to ensure your retention practices align with regulatory requirements. LaborLess provides a centralized approach to LCA posting and PAF management, helping organizations standardize processes, maintain audit-ready documentation, and reduce compliance risk. Learn more at https://www.laborless.io.

Frequently Asked Questions

How long must a Public Access File be retained?

A PAF must be retained for one year beyond the last date of employment under the LCA, or, if no employment occurred, one year beyond the LCA’s expiration or withdrawal.

What happens if an employee leaves before the LCA expires?

The retention period is still based on the last date of employment if the employee worked under the LCA.

Does an employer need to withdraw the LCA?

Withdrawal is not required to determine the retention period when employment has occurred, but it may still be advisable for other compliance reasons.

What records should employers maintain?

Employers should retain payroll records, HR data, and termination documentation to support their retention timelines.

Why is this important now?

Increased enforcement and audit activity mean that employers must be prepared to demonstrate compliance with documentation and retention requirements.