Employers' Paperwork Responsibilities After Hiring H-1B and Other Workers on Temporary Visas
When employers hire foreign workers, for example by sponsoring them for an H-1B visa, they take on multiple responsibilities. One of these is to retain the immigration paperwork that the employer created or collected in connection with the sponsorship process.
What Paperwork Should Employers Keep?
Employers are required to retain immigration paperwork only when they hire H-1B workers (detailed further below).
But as a general rule, employers should keep a copy of the entire immigration petition filed on behalf of each foreign worker -- which means copies of all forms and documents the employer submitted to U.S. Citizenship and Immigration Services (USCIS) and any relevant communication from USCIS, such as the I-797 Approval Notice, I-797 Receipt Notice, Requests for Evidence, and so forth.
Additionally, employers should supplement the immigration record with copies of the worker's pay stubs, so as to keep proof of having paid the worker.
Better to be safe than sorry: An employer that doesn’t know whether to retain a document is best off doing so just in case.
How Long Should Employers Keep Immigration Paperwork?
Generally, employers should keep the immigration paperwork for the duration of the worker’s employment or for the duration of the validity of the immigration petition – whichever is longer.
When USCIS approves a visa petition, it provides the petition’s validity period on the I-797 Approval Notice that it issues to the employer. For example, let's say Company A sponsors a Russian worker for an O-1 work visa. USCIS approves the petition with a validity period of October 1, 2012 through September 30, 2015. However, the worker leaves the employer on August 1, 2015. The employer must inform USCIS of the early termination, and should retain all of the immigration paperwork (including the communication with USCIS about the termination) through September 30, 2015.
Why Should Employers Keep Paperwork?
There are many reasons to retain immigration records. First, USCIS has a special office that investigates immigration fraud. This office sometimes conducts “site visits,” where an officer visits the employer and asks to review any immigration petitions. Failure to produce copies of the petitions could result in employer penalties or a revocation or denial of the petition. (For more information, see "Is Your Workplace Ready for a USCIS Worksite Inspection?".) There is always the possibility that USCIS will conduct a site visit, both before and after the foreign worker begins employment.
A second good reason for retaining immigration paperwork is in case the employer applies to USCIS to extend the foreign worker’s status. To apply for the extension, the employer will need to prove that the worker has been maintaining legal status in the United Status. Likely forms of proof include the worker's pay stubs and the I-797 Approval Notice for the previous work visa petition or H-1B visa. The employer has to provide the I-797 Approval Notice if the H-1B worker changed status in the U.S. rather than obtaining an H-1B visa at a U.S. consulate abroad, because this notice confirms that USCIS approved the worker's change to H-1B status. (If the worker has an H-1B visa, the employer should include a copy of the visa.)Without having kept a copy of that petition, the employer may have hard time proving the worker’s legal status.
Another good reason for retaining immigration paperwork is that employers are under an ongoing responsibility to inform USCIS of any material changes to the terms and conditions of the foreign worker’s employment. If there is a material change, the employer is required to file an amended petition with USCIS alerting it to the change. In practice, it is easier for employers to keep track of material changes and prepare amended petitions if they have been maintaining a complete record of the foreign worker’s immigration paperwork.
Of course, an employer who files an amended petition should also maintain a copy of that amended petition. This is especially important because if USCIS conducts a site visit and discovers the material change, the employer can prove that it informed USCIS of the change by showing a copy of the amended petition.
Additional Paperwork Responsibilities When Hiring H-1B Workers
Employers that hire H-1B workers have additional paperwork responsibilities. For each H-1B worker hired, the employer must create a public access file, which must include:
- A hard copy of the signed certified Labor Condition Application (LCA) that the employer filed in conjunction with the H-1B petition.
- Proof of paying the prevailing wage for the worker’s position.
- A clear explanation as to how the employer determined the prevailing wage.
- Proof that the employer complied with the LCA attestation of informing the union/other workers of the H-1B worker’s hire, and
- A summary of the benefits offered to U.S. workers in the H-1B worker’s position.
Also, in practice, employers usually keep a copy of the entire H-1B petition in this public access file.
The employer must keep this public access file at its place of business during the entire duration of the H-1B employment, and for one additional year after the employment ends. (For more information on H-1B employment, see "Employers' Obligations to Workers Who Have H-1B Visas.")
Importantly, the employer is under no obligation to keep records of the worker’s family’s paperwork. It is up to the worker and his or her family to maintain the family’s immigration documents.
Note that employers sponsoring workers for green cards (permanent residence) have different responsibilities in regards to retaining immigration paperwork.