Immigration Document Retention and Storage Requirements

Eric Ledbetter and Nneka Umeh
Insight & Impact - Labor & Employment Regulatory Newsletter

ISSUE: With the increased political focus on immigration, it is important for employers to comply with immigration document retention and storage requirements to avoid fines and other civil penalties. There are three key types of immigration documents with regulatory retention requirements: I-9 forms, H-1B Public Access Folders, and PERM green card application materials.

1. Form I-9

Employers must verify the identity and employment authorization of individuals hired for employment in the United States with the proper completion of Form I-9. Form I-9s should be retained in paper or electronic format, on or off-site, for three years after the date of hire, or 1 year after the employment termination date, whichever is later. Employers have three days to present I-9s in response to a government inspection request.

2. H-1B Public Access Folder

Employers seeking to employ foreign workers on an H-1B must first obtain a certified Labor Condition Application (LCA/ETA Forms 9035) from the Department of Labor. LCAs, and the corresponding public access folder, generally must be retained at the employer's principal place of business or the employee's work location for 1 year after the employment end date specified on the LCA or 1 year from the date the LCA is withdrawn.

3. Form ETA 9089

Employer sponsored green card processes can require the employer to obtain Department of Labor labor certification, Form ETA 9089. Form ETA 9089, and the corresponding audit file, must be retained for 5 years from the date the ETA 9089 was filed and can be stored by the employer, or the outside immigration attorney.

Read more Insight & Impact from May 2017:

IMPACT: Immigration documents should be stored separately from employee personnel records to limit the scope of the government's access to unrelated files. To minimize exposure to fines and penalties, we recommend developing a comprehensive compliance program, regular internal audits, and an action plan should a government site visit for the inspection of your immigration-related documents occur.

For more information, please contact your local Quarles & Brady attorney or these members of our employee benefits group:

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