What employers must know with regards to keeping documentation in H1-B and Labor Certification matters.

 

H1-B

The H-1B visa is a non-immigrant under the Immigration and Nationality Act of 1965 which allows U.S. employers to temporarily employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Who Can be an H-1B Employer?

The H1B Employer has to be a U.S. person or entity. (i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity within the U.S.)

What is a “Public Inspection File?”

A Public Inspection File (“PIF”) is a file required to be made available by an employer containing a filed or certified, if available, Labor Condition Application (“LCA”) and its supporting documents. It is required to be made available for public inspection at the worksite or place of business within one working day after the LCA is filed with the Department of Labor.

How Long Must the Employer Retain PIF?

PIF documentation must be retained for one year beyond completion of the H-1B employment.

Other Required Documentation

Additional documentation required for employers to keep:

List of “exempt” H-1B nonimmigrant workers
Summary of recruitment methods, if the employer hired any “non-exempt” H-1B workers
Documentation concerning compliance with the non-displacement obligation
Payroll records
Wage records
Hour records
Working conditions of employees
If the employer is a multinational employer and “home country” benefits are provided, evidence of the benefits provided to the H-1B employee before and after the transfer to the U.S. should be maintained.

General Information

The employer must make PIF available to a requestor within one business day after the request.
The employer must provide each H-1B employee with a copy of the certified LCA no later than the first day of work.
It is important that the employer maintain some type of documentation to evidence this action was taken.
Where there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants after the LCA is certified, the employer is required to notify Employment and Training Administration within three days.

In the event of a corporate change, PIF will contain further documentation, such as:
A sworn statement by the successor entity accepting all liabilities of the predecessor entity
Affected LCA number(s) and effective date(s)
Description of the successor entity’s actual wage system
The successor entity’s employer identification number
Each time the H-1B worker receives an adjustment in wage, the statement in PIF must be updated.

Compliance

An H-1B employer will be considered in compliance notwithstanding a technical or procedural failure if such employer:
Makes a good faith attempt to comply
Voluntarily corrects violations within 10 business days of being advised by an enforcement authority
Has not engaged in a pattern or practice of willful violations
For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices
Where the employer fails to maintain the documentation, the employer can be subject to penalty and fines and could also be barred from filing nonimmigrant and immigrant petitions in the future.

Labor Certification

A permanent labor certification is a document issued by the Department of Labor (DOL), which allows an employer to hire a foreign worker to work permanently in the United States. The DOL must certify to the United States Citizenship and Immigration Services (USCIS) that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

What Documents Must an Employer Retain?

The employer should retain any documents used to answer ETA Form 9089, such as, but not limited to:

Prevailing Wage Determination obtained from the State Workforce Agency
All recruitment information and documentation, such as website/newspaper postings where recruitment information was placed, any resumes received, etc.
Any documentation regarding wage offer
Any documentation regarding the alien’s education and identification, such as copy of the alien’s U.S. visa, affidavit/letter of experience from alien’s previous employer, etc.
Employer letter in support of petition

How Long is the Employer Required to Retain the Documents?

The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089.

The date of filing is the day DOL receives ETA Form 9089 (Also known as the “Priority Date”)

In Summary

The PIF and compliance requirements for an employer regarding keeping documentation after doing an H-1B or Labor Certification is lengthy. Failing to abide by the requirements may mean an employer may suffer civil penalties, or no longer be able to file for nonimmigrant and/or immigrant petitions in the future.For these reasons, it is highly recommended the employer seek the professional assistance of a lawyer in the field of employment immigration.