Importance of Checking Compliance Documents Now

There are certain documents that a U.S. employer is required to complete and maintain for some or all of its workforce. These requirements are especially important for employers of foreign national workers. As the political landscape shifts and we anticipate stricter enforcement of immigration laws under the incoming Trump administration, employers must prioritize compliance with key record-keeping requirements. Ensuring complete, accurate, and up to date I-9 records, public access files for H1B, H1B1, and E-3 workers, and compliance files for PERM cases is more critical than ever. Government audits and investigations are expected to increase, and noncompliance can result in significant penalties. Now is the time to review your records, identify any gaps, and take proactive steps to safeguard your business against potential enforcement actions.

Public Access File

As described in the MurthyDotCom InfoArticle, Six Things Every H1B Employer Must Include in Their Public Access Files (06.Jun.2022), an employer must make a public access file (PAF) available for inspection within one day of filing the labor condition application (LCA). It must be maintained either for one year past the final date that a foreign national worker is employed, or one year from the date the LCA expired or was withdrawn, if no employee was working pursuant to the LCA.

Compliance File

As noted in the MurthyDotCom InfoArticle, Employer Responsibility – PERM Audit Compliance File (10.Jul.2017), the employer must retain required documents for five years as of the date the labor certification is filed. This includes employer documents, such as financial documents to show ability to pay, certain recruitment documents and wage documents, and the sponsored employee’s documents such as education or experience to qualify for the position. The purpose of retaining the documentation is to show that all U.S. Department of Labor (DOL) requirements were met during the PERM process.

I-9 Documents

Whenever a U.S. company hires a new employee, the employer is required to verify the identity and employment authorization of the worker. This requirement extends to all workers, including U.S. citizen employees. In addition, depending upon the immigration status of the worker, the employer periodically may be required to re-verify that individual’s authorization to work.

Employers typically must retain I-9 records for either three years from the date worker is hired, or for one beyond the date the employment ends, whichever is later. In addition to the actual I-9 form, copies of the documents presented by employees to establish their respective identities and authorization to work can (but do not have to) be retained. If the employer chooses to maintain these documents, this policy should be applied uniformly for all workers. In other words, these records generally should be retained either for all employees or for none. Retention of these records in a non-uniform manner could be viewed as a prohibited form of discrimination under the Immigration and Nationality Act (INA).

Conclusion

With the incoming administration and the announcement of new H1B regulations taking effect on January 17, 2025, it is imperative that immigration documentation be reviewed to determine compliance with the law.  Murthy Law Firm attorneys are available to review public access files, PERM compliance files, and/or I-9 records to ensure that employers are up to date and ready for any site visit from the government.

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