Last Updated on February 23, 2023
How long do I need do keep public access files? What do I do with an LCA? Do these questions sound familiar? They probably do if you’re an HR practitioner dealing with your organization’s immigration.
With immigration law enforcement ramping up for employers of H-1B visa holders, it’s important to have everything lined up and in order to protect your employees and your company.
Last week’s webinar, On the Record: Maintaining Immigration Compliance for Your Organization, covered the ins and outs of properly maintaining immigration-related files in order to be compliant. Ensuring that all documentation is saved, stored, identified and separated correctly – that includes LCAs and public access files – is crucial to avoid fines and other penalties in the case of an immigration audit.
There are plenty of questions on this topic that are worth sharing. Though, in most cases, it’s best to consult with your organization’s attorney for any specific questions, here are some answers to some of the top questions from last week’s compliance webinar.
Is a new public access file necessary after an H-1B extension is filed, and what happens with the previous file?
For example, if an H-1B extension is filed, a new public access file is necessary, and it’s best to create it as a separate file. This is when an electronic filing system is extremely helpful. You should store the previous and new public access files together to show that you have document retention, but more importantly, to know which public access file relates to which position. You’ll want to mark the old file when the new one comes in since it’s specified in the requirements.
Best practice is to create a master file to be used with the public access files. There is no official ruling on this – it’s generally defensible for larger organizations. A master file would include all the previous access files plus a memo talking about why. This is really an individual conversation you should have with your attorney.
The creation of public access files are circumstantial, and for the best council on specifics, you should consult your attorney.
Are there any elements of public access files that have to be retained beyond one year?
Regulations require that you hold onto public access files file for one year from the date of an employee’s termination. After one year, you should shred or permanently delete your public access files to avoid any mix-ups that could result in a fine.
This is assuming you are properly storing your public access files separately from other immigration files, however. It’s so important that public access file is maintained separately; just in case an I-9 or another unrelated file accidentally gets slipped in there, you wouldn’t want that to get inadvertently deleted. There may also be other reasons, beyond immigration, that would make it necessary to hold onto a particular file beyond a year, and this is a great question to ask your general council.
What is the process when an audit official arrives onsite?
It’s a good idea to comply with the officer when he or she arrives. The best way to begin an interaction with an immigration official is to politely greet the officer upon arrival and then immediately consult your attorney.
Site visits are never casual and likely have been planned in detail over the course of weeks. With this in mind, it may behoove you to ask the officer for a letter of request or authorization before calling your attorney.
Often, officials will ask to review many documents, which means they won’t be able to review them all at once. In this case, it may be possible to put together an agreement with the officer that allows for future review that works for you. Smaller employers, on the other hand, are often asked to show everything at once.
Generally, they will ask for forms within a certain date range. It’s important to remember that it is expensive for the Department of Labor to send an officer on a site visit, so officers are interested in maximizing as much time as possible. This is another reason it’s so important you contact your attorney as soon as the officer arrives.
It’s also critical to have a detailed plan of action for each worksite in your company. Each site should have a point of contact, and each point of contact should know exactly how to proceed in the event of an audit.
With all the recent immigration attention, are there any industries that have been prioritized by USCIS or the Department of Labor for audits?
In general, there is no one industry under the microscope, but the current administration has announced that it’s going to scrutinize companies that heavily utilize H-1B visas. Department of Labor audits is also generally predicated on complaints and anonymous tips. We may see an increase in complaints in the future as well, thanks to an easily accessible email tip line created for reporting suspected immigration fraud to USCIS.
Want to listen to the full webinar to see other ways to help your organization stay compliant? Access the on-demand version here.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-retained attorney or another qualified professional.