Form I-9, Employment Eligibility Verification
Form I-9 is used by employers to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.
On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.
Maintenance of Public Access Files
For employers who hire foreign nationals to work in specialty occupations, specifically on the H1B, H1B1 and E-3 visas, the employers file a Labor Condition Application (LCA) with the Department of Labor (DOL). This form is filed electronically with DOL and by filing this, the employer make certain attestations to the DOL regarding the payment of wages and other working conditions impacting the foreign workers.
H-1B employers must make certain materials available to the public within one working day of filing the Labor Condition Application (LCA). These materials are stored in what is referred to as the Public Access File (PAF) and it has the following contents:
- The LCA;
- Rate of pay for the H-1B worker;
- Description or summary of the actual wage system;
- Prevailing wage rate and its source;
- Documentation that the notice requirement was satisfied;
- Summary of benefits offered to U.S. workers and H-1B workers;
- List of entities included as a “single employer”; and
- In the event of corporate change:
- Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity;
- List of H-1B workers transferred to successor entity;
- Each affected LCA number and effective date;
- A description of successor entity’s actual wage system; and
- Successor entity’s employer identification number.
- There are additional requirements for H1B dependent employers.
Public Access Files generally must be retained at the employer’s principal place of business or the employee’s work location for 1 year after the employment end date specified on the LCA or 1 year from the date the LCA is withdrawn.
Recordkeeping Requirements for Employment-Based Green Cards
Employment based Green Card process require the employer to file for PERM, Form ETA-9089 and obtain labor certification from Department of Labor. Employers must retain proof of all advertisements as proof of recruitment efforts conducted for purposes of filing the PERM, for a period of five years. Such file would include the following contents, including but not limited to: Prevailing wage determination, all copies of the newspaper advertisements, Notice of Filing, proof of newspaper advertisements and all proofs of additional recruitment conducted for professionals, recruitment reports, etc.