I tend look on the bright side of things. Although the government shutdown has halted our ability to file PERMs, LCAs and prevailing wages (to name a few) and tested our faith in the political system, I see a silver lining. This shutdown allows a little “me” time. It is a time to review lately unvisited compliance files and address other small annoyances that plague the immigration process.
LCA PUBLIC ACCESS FILE
The Labor Condition Application (LCA) is required for every H1B and E3 petition and is submitted to USCIS as part of the submission. But responsibility for the LCA does not end there. The DOL has retention requirements related to the LCA! Fun! This is all housed in a Public Access File. Within one business day of filing the LCA, the employer must have established a public access file which must be made available upon request to any member of the public. The file must be maintained at either the employer’s principal place of business in the U.S. or at the place of employment.
The public access file must include the following:
- Copy of the pending LCA. Replace with the certified LCA containing original signature (once LCA is certified) and cover pages.
- Prevailing wage information/salary survey.
- Actual wage memorandum and wage statement.
- Posting Memorandum to confirm compliance.
- Summary of Benefits.
Some attorneys provide many of these documents to their clients (Jackson Lewis included), which may include a cover sheet/checklist that can be used as the cover page for the LCA public access file for each employee. The public access file is retained for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no non-immigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn.
You should have a record of each LCA file and how long they must be maintained. This is also a good way to keep track of your H-1B employees.
As part of the Permit Electronic Review Management (PERM) program, the applications for permanent employment certification (ETA 9089) filed with the DOL and all supporting documentation must be retained by the employer for five years from the date of filing the PERM.
If you maintain your own recruitment files, take this time to determine which applications were filed five years or more ago and dispose of the documentation, with all the care and ceremony the task requires. If you find employees without the required recruitment documentation, contact your legal counsel (they probably have it), or determine where it may be within your department.
Every current employee must have a valid I-9. Take a few minutes to review your payroll records and confirm that every current employee has a valid I-9 on file. If an employee is missing an I-9, determine if one is required and if so, complete one immediately.
I-9s for terminated employees must be retained for three years from the date of hire or one year from the date of termination, whichever is longer. It is easier than it sounds: Take the date of hire and add three years, then take the date of termination and add one year. Whichever date is later is the date when you can dispose of the I-9.
You can also use this review to make sure all employees have valid work authorization. Permanent residents and US Citizens should never be re-verified. But, if you have any employees working pursuant to USCIS authorization, confirm that these are still valid. Review the expiration dates of their work documentation (EAD, H1B, TN, etc) in Sections 1 and 2.
If you are like me, reviewing retention requirements and poring over compliance files are NOT a recipe for a good time. But they sure beat the prospect of investigations and sanctions when Government employees return to work. The furlough-induced respite from immediate federal supervision is as good a time as any to attend to overlooked compliance issues. Jackson Lewis is available to discuss your retention procedures and how we can help you comply with reasonable effort.