1. Form I-9 Employment Eligibility Verification:
Obligations:
- Verify and document the identity and work authorization of all new hires within 3 business days of the employee’s start date using Form I-9.
- Maintain separate I-9 files for active and terminated employees.
- Reverify expiring work authorization for nonimmigrant workers (e.g., H-1B, L-1).
- Do not request more or different documents than required; ensure consistent treatment to avoid discrimination claims.
Retention:
- Retain I-9s for 3 years after the date of hire or 1 year after the date of termination—whichever is later.
Best Practices:
- Conduct regular internal I-9 audits.
- Use E-Verify (if applicable) to complement the I-9 process.
- Train HR personnel on anti-discrimination provisions of INA §274B.
2. USCIS FDNS (Fraud Detection and National Security) Site Visits:
What to Expect:
- Unannounced visits to verify information on H-1B, L-1, or other petitions.
- Interviews with HR, direct supervisors, and the foreign national employee.
- Inspection of payroll records, job duties, organizational chart, and work location consistency.
Preparation Tips:
- Keep a copy of all H-1B filings, certified LCA, and USCIS approval notices readily accessible at the worksite.
- Designate a point of contact for site visitors (typically an HR or legal representative).
- Ensure job titles, duties, and work locations match what was filed with USCIS.
- Train managers and employees on what to expect and how to respond professionally.
3. DOL H-1B Wage and Hour Audits:
Triggers:
- Employee complaints, random audits, or referrals from other government agencies.
Employer Requirements:
- Maintain a Public Access File (PAF) for each LCA, which must include:
- LCA copy
- Prevailing wage source
- Actual wage explanation
- Summary of benefits offered
- Posting notices
- Keep payroll records for H-1B workers for at least 3 years.
- Pay the required wage from the date the H-1B employee enters into employment, including bench time.
Common Violations:
- Underpayment
- Misclassification of worksite
- Failure to maintain PAF
- Not updating USCIS/DOL on material changes
4. PERM Labor Certification Audit File:
Retention Requirement:
- Maintain a complete audit file for 5 years from the date of filing ETA Form 9089.
Contents of Audit File:
- Prevailing wage determination
- Recruitment advertisements (newspaper, job order, etc.)
- Employer’s recruitment report and justifications for rejection
- Copies of posted job notices and internal postings
- Business necessity justification (if required)
- Professional position documentation (for Schedule A or special handling cases)
Best Practices:
- Keep all supporting evidence organized and dated.
- Ensure all recruitment steps comply strictly with PERM regulations.
- Document all contact with job applicants (emails, rejection letters, interview notes).
5. General Compliance Recommendations:
- Maintain a centralized immigration file system accessible to authorized personnel only.
- Conduct internal audits annually on I-9s, H-1B PAFs, and PERM processes.
- Train staff on recordkeeping obligations and non-discrimination policies.
- Develop a compliance calendar to track visa expirations, work authorization updates, and posting deadlines.
- Work with immigration counsel for every H-1B amendment, transfer, or green card sponsorship.
Consequences of Non-Compliance:
- Civil penalties and fines
- Debarment from H-1B or PERM programs
- Criminal liability in cases of fraud or willful violations
- Denial or revocation of petitions or certifications
