Corporate Immigration Compliance: Dealing with Document Retention

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Any corporate immigration program must consider what documents to retain, how long to retain them, and where to store them. In an era of increased inter-agency cooperation, a heightened focus on compliance, and an increasingly mobile workforce, it is important for a company to review its document retention practices.

There are three primary types of immigration documents with regulatory retention requirements: Forms I-9, Labor Condition Applications (LCAs)/Public Access Files (PAFs), and PERM Labor Certifications.  The documents that must be retained, the required period for retention, and where the documents may be stored differ for each.  The chart below summarizes the document retention requirements for these various immigration processes, as well as some basic best practices for retaining other government filings.

Ensuring that documents are retained properly can best be achieved by establishing a clear and understandable corporate immigration compliance policy.  The policy should typically:

  • Detail who is responsible for performing immigration-related functions;
  • Require regular training programs at all levels;
  • Establish protocols for monitoring and measuring compliance;
  • Address any ramifications for violating policy;
  • Establish a procedure for detailing with any government visits or audits;
  • Include clear guidelines for form i-9 compliance; and
  • Contain a process for handling agency no-match letters related to social security numbers.

If outside vendors are used to complying with certain processes, the company must ensure that the vendor is properly trained and fully informed of current U.S. Citizenship and Immigration Services (USCIS)/Immigration and Customs Enforcement/Homeland Security Investigations (ICE/HSI) guidance.  The vendor must have experience preparing responses for its contracting employers to federal audits on a timely and compliant basis.

As a best practice, it is also advisable for employers to conduct self-audits at least on an annual basis.  In 2015, the Department of Justice and the Department of Homeland Security issued a joint memo offering guidance to employers when conducting internal Form I-9 audits.  Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination statutory requirements.

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Immigration Process/Document What Documents Must Be Retained? For How Long Should the Documents Be Retained? Where Should the Documents Be Stored? Enforcement Agency/

Methods/

Penalties

Form I-9, Employment Eligibility Verification

 

(All Employees)

Required – Completed Forms I-9 (page(s) where employer and employee enter data). Note Instructions for Form I-9 to be provided to new hire at time of completion.

Optional (Recommended) – Copies of documents presented by employees to show identity and verify employment authorization (if retained, these must be kept for all employees)

If enrolled in E-Verify, employers must make and retain a photocopy (front and back) of the following documents if they are presented during the I-9 process:

  • U.S. Passport;
  • U.S. Passport Card;
  • Permanent Resident Card; and
  • Employment Authorization Document (EAD).
During employment, plus the longer of:
  • 3 years from the date of hire; or
  • 1 year from the date of termination.

The following process may be useful:

May be stored:
  • On-site or at an off-site storage facility (so long as they can be presented within 3 days of an inspection request)
  • In a single format or a combination of formats, such as paper, microfilm or microfiche, or in an electronic format.

Employers who choose to keep paper copies of the documents their employees present may store them with the employee’s Form I-9 or with the employees’ records. USCIS recommends, however, that employers keep Form I-9 separate from personnel records to facilitate an inspection request.

https://www.uscis.gov/i-9-central/complete-correct-form-i-9/retention-and-storage

Officers from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section (IER) at the Department of Justice (DOJ), and employees from the Department of Labor (DOL)may ask to inspect these forms.

Civil monetary penalties, possible criminal penalties.

1. Date the employee began work for pay.
  1. Add 3 years to the date on line 1.

2. Date employment was terminated.

  1. Add 1 year to the date on line 2.

3.  Which date is later, A or B?

  1. Enter the later date.
1.

A.

2.

B.

3.

C.

The employer must retain Form I-9 until the date on Line C.
Labor Condition Application (LCA)/ Public Access File (PAF)

 

(Employees in H-1B, H-1B1, or E-3 Status)

Documents supporting each LCA, including:
  • Signed copy of the certified LCA and LCA form cover pages;
  • Wage rate statement;
  • Explanation of employer’s actual wage system;
  • Prevailing wage documentation;
  • LCA posting notices and posting attestation;
  • Summary of benefits offered to U.S. employees and any H-1B, H-1B1, and/or E-3 workers;
  • If applicable, statement of continuing LCA validity after a corporate change.

For H-1B dependent employers, the PAF must also include:

  • List of “exempt” H-1B nonimmigrants;
  • Summary of recruitment methods, if employer hired any “non-exempt” H-1B workers.

Employers’ obligations with regard to the PAF do not end once the PAF has been prepared and stored by the employer. Employers must continue to maintain the PAF and update it accordingly based on changes to corporate structure, changes in actual wage/issues surrounding wage levels at the time of extensions, displacement issues for willful and dependent employers, as well as bona fide terminations.

The longer of one year from either:
  • Expiration date specified on the LCA; or
  • The date the LCA is withdrawn (except in the case of DOL enforcement action)
Employer’s principal place of business, or at the worksite at which the nonimmigrant employee is employed.

Electronic storage is also possible.  If storing electronically, we recommend that  the PAF be stored on a secured company-wide site accessible to personnel who handle immigration-related matters on behalf of the company.

In the event of an audit or request by the public to view the public access files, a designated company representative should be able to access and produce the PAF.

DOL

Back wages, civil penalties, debarment.

PERM Labor Certification/ Audit File The employer is required to retain the application for labor certification and copies of all supporting documentation, including:
  • Copy of the PERM labor certification;
  • Prevailing wage determination;
  • Proof of notice to employees/union;
  • Recruitment report;
  • Copies of all advertisements;
  • Resumes received during the recruitment campaign, if applicable;
  • Proof of any contact with applicants;
  • Business necessity justification, if applicable.
Five years from the date of filing the application for labor certification.

(There is no statute of limitation for revocation of a labor certification, so employers may want to consider retaining the audit period beyond the five-year period.)

There is no specific requirement.  Retention by the company’s attorney is permissible.  The employer must be able to produce documents within 30 days if requested by DOL. DOL

PERM denial or revocation; employer may be required to conduct supervised recruitment.

Nonimmigrant Visa Petitions Full copy of filing. Employer should retain a copy of the petition so long as the petition is valid. While not legally required, employers may want to consider retaining any petitions filed on behalf of employees until permanent residency is achieved or the employment is terminated. No specific requirement – paper or electronic. USCIS
I-140 Petition Full copy of filing. While not legally required, best practice is to retain a copy of the I-140 petition until permanent residency is achieved or the employment is  terminated. No specific requirement – paper or electronic. USCIS
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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