Sponsoring foreign talent is a worthwhile venture for any employer who wishes to remain competitive, both domestically and internationally. This is particularly true for highly skilled positions for which demand outpaces supply. The process for sponsoring a foreign national is highly complex and involves several government agencies who work together to enforce the applicable laws and regulations. For these reasons, it is crucial for employers to have a sound sponsorship program that includes a regular review of its document retention practices.

Documents to Retain

With respect to sponsoring highly skilled workers, there are three primary types of immigration documents that have specific retention requirements. The information below provides an overview of those types of documents and includes tips for employers to help ensure compliance.

Form I-9

The Employment Eligibility Verification (I-9) Form is used by employers to verify the identity and employment authorization of anyone who wishes to work in the United States. Employers are required to retain the I-9 form, and it is recommended that they also retain copies of the documents presented by the employees to establish identity and employment authorization.

Labor Condition Application (LCA)/Public Access File

The Labor Condition Application (LCA) is a form employers file with the U.S. Department of Justice when seeking to sponsor certain foreign workers (including H-1B, H-1B1, and E-3 nonimmigrants). There are four attestations employers must make with each LCA; those attestations are as follows:

• The employer will pay the sponsored employee the higher of the actual wage or the prevailing wage for the position.
• The employment of the sponsored employee will not negatively impact the working conditions of similarly situated employees, and the working conditions for the sponsored worker are similar to the working conditions of those U.S. workers who are similarly situated.
• There is no strike, lockout, or work stoppage at the employment location at the time of filing the LCA.
• Because LCAs are public records, the employer must provide notice of every application submitted to other employees.

The LCA is a part of an employer’s Public Access File, which must be made available to anyone who submits a request. Employers are required to retain LCA documents even after a sponsored employee obtains permanent residence or terminates employment as well as provide a copy of the LCA to each sponsored employee.

Labor Certification Application (PERM)

In the same way that the LCA referenced above supports the temporary employment of a foreign-born worker who will be sponsored by the employer, the labor certification application (referred to as the Program Electronic Review Management, or PERM, application) supports the permanent employment of a sponsored employee. It is the form used to show that the U.S. employer has been unable to find a qualified, willing, able, and available U.S. worker to fill the position.

An employer is required to retain a PERM audit file, which includes documentation such as recruitment materials and the reasons why applicants for the position did not meet the regulatory criteria.

Immigration Document Retention

 

DOCUMENT	HOW LONG TO RETAIN	WHERE TO RETAIN	COMMENTS
I-9 Form	The later of: Three years after date of hire, or One year after termination	Onsite, or Off-site, or Electronically	Form must be retrievable within three days of an inspection request. PRACTICE TIP: store I-9s in a separate location from personnel records.
LCA/Public Access File	One year from the last date on which any H-1B nonimmigrant was employed under the LCA, or If no nonimmigrants were employed under the LCA, one year from date the LCA expired or was withdrawn (unless an audit has been initiated).	Employer’s principal place of business, or Location where employee works	Employer must provide employee with copy of LCA. PRACTICE TIP: store LCA in a separate location from personnel records.
PERM (Labor Certification) Audit File	Five years from the date of filing ETA from 9089	Not specified, can be retained by the employer’s lawyer	The DOL can revoke labor certification applications even after five years. PRACTICE TIP: retain longer than five years.

 

It is always a good idea for employers to conduct internal audits on a regular basis to ensure compliance with immigration retention requirements.  If you have questions about immigration retention requirements or practices, feel free to reach out to the immigration team at Nilan Johnson Lewis.