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.
|Immigration Process/Document||What Documents Must Be Retained?||For How Long Should the Documents Be Retained?||Where Should the Documents Be Stored?||Enforcement Agency/
|Form I-9, Employment Eligibility Verification
|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:
|During employment, plus the longer of:
The following process may be useful:
|May be stored:
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.
|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.
2. Date employment was terminated.
3. Which date is later, A or B?
|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:
For H-1B dependent employers, the PAF must also include:
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:
||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.
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:
||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|
ABOUT THE AUTHOR
Heather Frayre is Of Counsel in Dickinson Wright’s El Paso office where she assists clients in navigating immigration matters tied to the recruitment, hire, transfer, and retention of foreign workers. She counsels corporate and individual clients on a full range of immigration matters including non-immigrant visas, permanent residency, and citizenship as well as issues tied to worksite compliance. She can be reached at 915-541-9370 or email@example.com.