Immigration Document Retention for Past Employees

When necessary, employers must terminate a foreign national employee. Typically, once a terminated employee leaves the company, the employer is no longer obligated to fulfill responsibilities as an immigration sponsor. At least, many employers believe that their responsibilities end at termination and they do not need to retain any documents. However, years later federal investigators may expect your company to produce documents from your past employees. Failure to do so could result in thousands of dollars of unwanted fines.

I-9 

For all employees, foreign born and native, employers must collect and retain employment eligibility forms, or the I-9 document, completed on or before the employee’s first day at the job. An employer must keep the Form I-9 for every employee for three years following the beginning of employment or one year after the employee is terminated, whichever is later. If a company is audited, federal officials will expect Form I-9 documentation for all employees. Failure to comply can result in fines ranging from hundreds to tens of thousands of dollars. Employers should purge any Form I-9s that are no longer required.

Labor Condition Application 

Employers of H-1B specialty workers are all too familiar with the Labor Condition Application, or LCA. Documenting the conditions of the H-1B employee’s official worksite helps to ensure that employers make H-1B petitions in good faith, without fraudulent intent. If an employer terminates an H-1B employee, the employer maintains an obligation to provide evidence of documentation related to the employee for up to one year after the LCA expired or was withdrawn. In addition, federal examiners require employers to present the LCA among other documents up to a year after the termination of an H-1B employee. Since the LCA tracks wage levels for the H-1B employee, failure to comply with requests for documentation could result in an order to the employer to produce back wages for the terminated employee.

Conclusion

As ICE becomes more and more involved in the H-1B worksite inspection, it is imperative that employers protect themselves from the hefty fines associated with document retention. Federal investigations are sometimes prompted by anonymous complaints filed by disgruntled employees. If your company fails to retain documents related to terminated employees, you could be faced with debarment from certain visa programs and thousands of dollars’ worth of fines.