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H-1B Public Access File Record Retention Rules

March 30, 2011

Retention of LCA Records in a Public Access File: An H-1B employer that files a Labor Condition Application (LCA) required as part of the H-1B petition process is required to maintain the filed/certified LCA among other legally-mandated documentation in a Public Access File (PAF) for public inspection.  There are rules with respect to retention of records in such PAF.  An H-1B employer may maintain PAF either at its principal place of business in the U.S. or at the place of H-1B immigrant’s employment.  The employer shall retain copies of the records for a period of one (1) year beyond the last date on which any H–1B nonimmigrant is employed under a given LCA or, if no nonimmigrants were employed under the LCA, one (1) year from the date the LCA expired or was withdrawn.

Retention of Payroll Records: Required payroll records for the H–1B employees and other employees must be retained at the employer’s principal place of business in the U.S. or at the place of H-1B nonimmigrant’s employment for a period of three (3) years from the date(s) of the creation of the payroll record(s).  However if an enforcement action is initiated against the employer, all payroll records must be retained until the enforcement proceeding is completed.

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