What Files Must Employer Keep Regarding H-1B Workers?

What should U.S. employers keep of H-1B employees' records, and when will you need these again?

By , Attorney (Capital University Law School)

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 visa sponsorship process. Here, we'll explain:

  • what sort of paperwork your company should keep on file regarding H-1B workers
  • the length of time you should keep it for
  • the legal and practical reasons you're keeping it
  • where you should keep the paperwork, and
  • some of the other responsibilities that come with hiring workers on H-1B visas.

What Paperwork Should Companies Sponsoring H-1B Employees Keep?

Employers are required to retain immigration paperwork only when they hire H-1B workers (detailed further below).

But as a broad rule, employers should keep a copy of the entire immigration petition filed on behalf of each and every 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 (RFEs), and so forth.

Additionally, employers should supplement their immigration record with copies of the worker's pay stubs, so as to keep proof of having paid the worker as required.

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.

For How Long Should Employers Keep Immigration Paperwork?

Employers should ordinarily keep the immigration paperwork for the duration of the worker's employment or 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, 2023 through September 30, 2027. However, the worker leaves the employer on August 1, 2024. 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 (at least) September 30, 2027.

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 being hit with employer penalties, a revocation or denial of the petition, or a temporary ban on submitting new petitions. 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 eventually wants to apply 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 could have a 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 must file an amended petition with USCIS alerting it. In practice, it is easier for employers to keep track of material changes and prepare amended petitions if they have been maintaining a complete file of the foreign worker's immigration paperwork.

Of course, an employer who files an amended petition should also maintain a copy of it. 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 Responsibility When Hiring H-1B Workers: Public Access File

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 or 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.

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.

Importantly, the employer is under no obligation to keep records of the worker's family's paperwork. It is up to the worker and 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.

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