Spring Cleaning Series: Keeping Up on Your Immigration, I-9 and E-Verify Documentation

This is the fourth in a series of “Spring Cleaning” alerts. As part of this series, we will provide you with various to-do items and tips in the employee benefits, employment, and immigration areas.

Spring is a great time to perform an annual evaluation of expiring company records and determine which files can (and should) be purged, and your Spring “record cleaning” should include review and evaluation of records kept for federal immigration, I-9, and E-Verify compliance. This is also a great time to remind ourselves how critical it is to maintain up-to-date, accurate immigration and employment documentation in case of a government audit. Self-auditing on a periodic basis can avoid potential penalties and fines as well as provide valuable information about where future training is needed to improve your company’s compliance record. This alert highlights some key immigration recordkeeping requirements and includes tips for making sure your files and documentation are squeaky clean.

Immigration Files:

• An immigration file should be maintained for every active foreign national employee working in the United States. This file should be kept separately from the employee’s personnel file. It should include copies of filings with the U.S. Citizenship and Immigration Services (“USCIS”) as well as other government agencies, such as the U.S. Department of Labor (“DOL”) and the U.S. Department of State. Additionally, it should include government receipt notices and approval notices. As a rule of thumb, most companies retain a copy of each employee’s immigration file for five years beyond their final termination date.
• Companies with H-1B and E-3 visa employees are under additional obligations from the DOL to retain an active and certified Labor Condition Application (“LCA”) for each H-1B and E-3 worker. The LCA serves as a regulating tool to ensure employers are compliant with mandatory salary and employment rules. In order to demonstrate compliance under the LCA, an employer must actively maintain a Public Access File, which must be created within one day of submitting an LCA for certification to the DOL. As a compliant employer, it is critical to actively maintain these mandatory files within government standards.

The Public Access File should consist of:

• LCA and cover pages.
• Wage rate documentation.
• Actual wage system.
• Prevailing wage documentation.
• Summary of employee benefits.
• Notification documentation to the prospective foreign national employee.
• Change in corporate structure statement (as applicable).
• Additional requirements may apply if the company employs large numbers of H-1B or E-3 workers.

These files must be accessible by request to all interested parties and must be maintained either at the employer’s principal place of business or at the worksite.

It is increasingly common for foreign nationals to work at client sites, work remotely, or frequently travel to various office/client locations. Compliant H-1B and E-3 employers must anticipate known worksites and ensure that proper LCA notice is given at each worksite prior to letting an employer perform work there. Recently, the USCIS has increased the number of site visits to ensure H-1B employees are located where the immigration petition indicates. As site visits increase, it is even more crucial to meticulously maintain these files in case of a USCIS or DOL site visit.

The Public Access File must be retained for one year after the date of employment listed on the LCA. If the foreign national’s employment is terminated for any reason prior to this date, the LCA should be withdrawn immediately from the DOL and the Public Access File must be maintained for one year beyond that.

• Payroll records for a foreign national employee working in the U.S. should be retained the same as for any U.S. worker. Keep in mind that, subject to domestic and foreign tax considerations, certain visa types allow the employee to be paid on the payroll of the company’s foreign subsidiary or affiliate, such as an L-1 or TN visa. However, other visa types such as the H-1B and E-3, have very strict rules that require foreign national workers to remain on the U.S. payroll.

By maintaining proper immigration files, you will ensure that your company has placed itself in the best position in case of a government audit, inspection or surprise site visit. If you have questions regarding your company’s compliance with maintaining these mandatory files, please contact us immediately.

I-9 Documentation:

In order to comply with federal law, an employer must verify the identity and employment authorization of each new hire, and complete and maintain a Form I-9, Employment Eligibility Verification. An integral part of the I-9 process is diligent maintenance of these records. I-9 documentation must be kept for all active employees. Additionally, once the individual’s employment is terminated, the employer must maintain the I-9 for either three years after the date of hire, or one year after the date of employment is terminated, whichever is later.

If chosen for an I-9 inspection by the U.S. Immigration and Customs Enforcement agency, your company has a minimum of three days to make I-9 records available. This includes all I-9 forms for active employees as well as retained I-9 forms for terminated employees within a specified period of time (i.e., for 1-3 years). Therefore, it is in your company’s best interests to purge expired records when possible and retain only those documents required. That way, if your company does get chosen for an I-9 audit by the government, you will have well-maintained files to facilitate this process.

E-Verify Documentation

E-Verify is a federal database program maintained by the U.S. Department of Homeland Security and the Social Security Administration. Registered employers can use E-Verify free of charge in order to verify in real time the identity and work authorization data of employees. At this time, there is no federal law requiring all employers to use E-Verify. However, if your company has certain qualifying federal or state contracts or if your company simply operates in certain states, there may be an obligation to use E-Verify on new hire employees and in certain instances on existing employees. For more information about E-Verify compliance and whether the program is right for your company, you should contact an experienced immigration attorney.

The document retention rules around E-Verify are similar to the I-9 retention rules. Once the E-Verify database clears an employee, the employer should print the confirmation page and keep it with the I-9 file for the same time period as the Form I-9 along with any other printouts from the E-Verify system. In Illinois, E-Verify employers are also obligated to keep a state form on file confirming that it has trained its staff on the proper usage of E-Verify, and that it complies with all E-Verify rules. Finally, all E-Verify companies must maintain workplace posters informing employees and prospective applicants that E-Verify is used, and that workers have certain rights in connection with the use of E-Verify.

For more information on Immigration, I-9 and E-Verify compliance, please attend Quarles & Brady LLP’s next Business Law Training (BLT) program. On Thursday, May 8, Grant Sovern and Eric Ledbetter will present, “Immigration, I-9 and E-Verify Compliance for Employers.” Since all employees must complete the Form I-9 and all employers are subject to these regulations, this session will be geared toward all employers, not just those who sponsor a large number of foreign nationals for work visas.

If you have any questions or would like to discuss your compliance program, please call or email Eric Ledbetter at (312) 715-5018 / eric.ledbetter@quarles.com, Emily Shircel at (414) 277-5217 / emily.shircel@quarles.com, or your Quarles & Brady attorney.