Employer Best Practices for DHS or DOL Immigration Compliance Checks and Investigations

U.S. employers are required to keep certain documentation and files.  Some documents, like Federal Form I-9, Employment Eligibility Verification, are required for ALL U.S. employees.  Other documents are required only for employees going through certain immigration processes.

Here are some tips for employers to ensure they are ready if the Department of Homeland Security (DHS) or Department of Labor (DOL) comes knocking.

This article focuses on I-9 and DOL investigations and does not address an ICE workplace raid.  For more information on workplace immigration raids/enforcement actions, please review our article, Best Practices for Employers during a Workplace Immigration Raid.

Form I-9, Employment Eligibility Verification – All U.S. Employees:

An employer is required to have an I-9 and supporting documentation for every W-2 employee currently on staff, regardless of immigration status.  Ideally, I-9 forms and their supporting documents should be kept separate from the rest of the employee’s personnel files.

In addition, an employer is required to retain an I-9 for each employee hired for three years after the date of hire or one year after employment ends, whichever is later.  This means if an employee separated from the company 6 months after starting, you will need to retain that I-9 for an additional 30 months.  If on the other hand, the employee leaves after 5 years, then you only need to retain the I-9 for an additional 12 months from the date of departure.

Checklist for confirming I-9 Compliance:

• Properly completed Form I-9 on file for every current employee
• Properly completed Form for every employee who stopped working during the past 12 months
• Properly completed Form I-9 for any employees who were hired less than two (2) years ago and have left the company.
• Form I-9 Review Properly Completed
  • Section 1 completed by the Employee
    • All appropriate spaces completed
    • Is the I-9 signed and dated by the employee on or before first date of employment
  • Section 2 completed by authorized Employer Representative
    • All appropriate spaces completed
    • Form I-9 signed and dated by the employer representative on or before the third business day of employment
  • Information from the employee’s original documents correctly recorded
    • One (1) LIST A document, or
    • One (1) LIST B document and One LIST C document
  • Copies of the documents used to verify employee identity and ability to work attached to Form I-9
  • If reverification of employment authorization is needed (for example when a work authorization document is expiring), has it been appropriately completed, signed, and dated?

To ensure I-9 compliance, it is best practice to engage in regular and routine internal I-9 audits with your human resources team, and the assistance of an experienced immigration attorney.

If you receive a Notice of Inspection from DHS, you will have 3 business days to respond.  We strongly recommend that you consult with an experienced immigration attorney before turning over any documents or information to DHS.

Public Access File (PAF) – H-1B and E-3 Employees:

For all H-1B and E-3 employees, the employer has filed and signed a Form ETA-9035, Labor Condition Application (LCA) with the Department of Labor (DOL) that is associated with and connected to the foreign national employee’s H-1B or E-3 status.

When an LCA is filed by an employer, the regulations require an employer to keep a Public Access File (“PAF”) for every H-1B and E-3 employee currently on staff. The Public Access File is exactly what it sounds like, a file that must be made available for public inspection within one business day of the LCA’s submission to the DOL.

A PAF can be maintained as either an electronic or a physical file, but it should be maintained separately from the employee’s personnel file.

Contents of Public Access File (PAF)

The PAF must contain the following documents:

• Signed, certified LCA
  • Since the PAF should be created immediately when the LCA is filed, and the certification of the LCA typically arrives 7 days after filing, the certified LCA once received should replace the unsigned LCA. The certified LCA must be signed.
• Signed Notice of Filing as evidence that notice was given to employees/union representative for the required period of time
• Evidence to support the Prevailing Wage Determination for the position
• Evidence of Actual Wage and Employment Benefits provided to the employee and similarly situated employees

Retention of the PAF

The PAF and any applicable payroll records for the specific employee must be retained one year beyond the last on which the employee is employed pursuant to the LCA.  If no H-1B/H-1B1/E-3 employee is employed pursuant to that LCA, the PAF must still be retained one year from the date the LCA expired or was withdrawn.

If an employee leaves a position prior to the expiration of the LCA, was never onboarded, or has changed their immigration status, it is important to withdraw the LCA immediately to start the one-year retention period.  After one year from the expiration or withdrawal of the LCA, the PAF can be purged.

Best Practices to Ensure Compliance with Regulations:

• Review payroll and ensure you have a PAF for every current H-1B or E-3 employee as well as a PAF for any H-1B or E-3 employee who has left within the past year.
• Make sure you have a PAF for every LCA filed within the last 3 years, even if no employee has been working under that LCA for the past year.
• With respect to the LCA (Form ETA-9035) itself, employers should review and confirm the following:
  • The LCA is certified and signed
  • The employee associated with the LCA is currently employed in H-1B or E-3 status
    • If not, was the LCA withdrawn? If not, withdraw the LCA now.
  • The worksite on the LCA matches ALL the physical worksites and the current physical company location for the employee
  • The employee is receiving at or above the actual wage listed on the LCA
  • A copy of the signed, certified LCA has been provided to the employee
• If no employee is working under an LCA:
  • If the LCA was withdrawn more than one year ago, purge the PAF for that particular LCA
  • If the LCA expired more than one year ago, purge the PAF for that particular LCA

If DOL or DHS notify an employer of an investigation, consult immediately with an experienced immigration attorney to confirm the scope of the investigation, the documents and information requested from the Department, and the timing of the required response.

Labor Certification Compliance File – Employees sponsored by employer for Labor Certification/Lawful Permanent Residency (Green Card)

If an employer is sponsoring an employee for Lawful Permanent Residency using the Permanent Labor Certification (Form ETA-9089) process (sometimes called “PERM”), after the Application for Permanent Labor Certification is submitted, the employer must maintain a Labor Certification Compliance File (“Compliance file”).

The employer must retain a copy of the Labor Certification Compliance File for five (5) years from the date of submission of the ETA-9089 Application for Permanent Labor Certification submitted on behalf of an employee.

Contents of Compliance File

The Compliance File must contain the following for every Labor Certification application (ETA-9089) filed during the past five years:

• A copy of the Labor Certification Application
• The “Recruitment Report” summarizing the recruitment efforts and responses
• Copies of the advertisements and postings completed in connection with the process
• Copies of any applicant resumes and screening questionnaires
• A copy of the Prevailing Wage Determination used for the ETA-9089
• Documents supporting the business necessity for any requirements not considered “normal” for this position (if applicable)

The Compliance file, like the PAF and I-9, should be kept separate from any personnel records.  It should also be easily accessible to provide to the Department of Labor in the event of a DOL audit.

In the event of DOL investigation or audit into ETA-9089 compliance practices, consult immediately with an experienced immigration attorney to confirm the scope of the investigation, the documents and information requested from the Department, and the timing of the required response.

This article is intended for informational purposes only and does not constitute legal advice. You should not act or rely on any information in this article without seeking the advice of a competent, licensed immigration attorney.

Kolko & Casey, P.C.’s excellent team of experienced immigration attorneys and professional staff can be reached at 303-371-1822.