H-1B LCA Retention Rules

Employers who hire workers in H-1B status are supposed to file a Labor Condition Application (LCA) with the Department of Labor. The employer must also create a Public Access File (PAF) which contains the LCA and other documents that are supposed to be made available to the public on demand. The subject of this post is only the retention rules for these records. This post will not address other LCA or PAF issues.

The PAF must be maintained by the employer either at the principal place of business (i.e. headquarters) or place of employment (the employer indicates the location of records in the LCA at filing) for the following periods:

• For a period of one year beyond the last date on which you employed any H-1B worker under the LCA, or
• If the employer did not employ any H-1B workers under the LCA, one year from the date the LCA expired or from the date it was withdrawn

In light of the above, we recommend to our employer clients that as part of the PAF creation procedures, they institute a calendaring/reminder system where they enter a reminder to purge the PAF 1 year after the expiration date of the LCA. If the H-1B employee ends up being separated from employment before the expiration date of the LCA, the employer should reschedule the above reminder to 1 year beyond the date of separation. We recommend purging the PAF after the retention period expires.

The employer must also retain payroll records for 3 years from their creation. Payroll records should not be maintained in the PAF file.

If there are any questions regarding H-1B visas and DOL compliance, our experienced attorneys are always available for a consultation, which can be scheduled by contacting our Albuquerque immigration lawyers.

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