By: Nina Scott-Curry

With stricter enforcement under the Trump administration, we would like to remind employers that they should verify employment authorization and identity of new employees by completing form I-9.  For those employers hiring H-1B workers, remember to create and retain a Public Access File (PAF) and have them ready for inspection.

Site visits are becoming more common now and everything must be placed in order and ready for inspection. USCIS's Fraud Detection and National Security (FDNS) unit conduct unannounced inspections of the work sites of employers who sponsor foreign workers. The purpose of a site inspection is to verify the existence of the employer, check the accuracy of the information provided by the employer in its immigration petitions, and ensure that sponsor workers are complying with the terms of their admissions to the U.S.

Compliance with Form I-9 Requirements

All employers must verify employment authorization and identity of new employees by completing Form I-9.  An employee is considered any person to perform labor or services in the U.S. in return for wages or other compensation (anything of value given in exchange for labor or services).  The requirement to complete Form I-9 applies to new employees hired after November 6, 1986.

USCIS Released M-274 Handbook for Employers: Guidance for Completing Form I-9 (Employment Eligibility Verification Form) this year. The handbook provides clear step-by-step guidance, including illustrations and sample images of acceptable evidence for both identity and employment authorization. It sets out the process for reviewing the appropriate documentation and recording the information on the Form I-9. USCIS now explicitly notes that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who received a 24 month extension of their optional practical training.

The handbook also details Automatic EAD extensions, which can now be auto-extended for up to 180 days for certain individuals who timely filed to renew an EAD. Various categories of foreign nationals are currently eligible for these auto-extended EADs.

Requirements of a Public Access File (PAF)

Creation and maintenance of a Public Access File (PAF) is a crucial part of complying with H-1B laws.  The purpose of a PAF is to create a file in the employer's place of business that contains documents that prove the employer is satisfying the minimum legal requirements of an H-1B. Unfortunately, if employers wrongfully do not create and maintain a PAF, it can cause serious legal consequences in the event of an audit.

It is important to remember not to include any unnecessary documents in the PAF unless they are specifically required. Since the Dept. of Labor and the general public have the right to inspect the company's (employer's) PAF, unnecessary document included in the PAF could compromise employee privacy. Every H-1B employee's PAF should be kept separate from their employee/personnel file.

Here are some examples of documents that should not be included in the PAF:

• A copy of the completed H-1B petition
• Confidential employee information, such as academic records
• Employment history, or disciplinary records
• Company financials

Checklist of Documents to include on a PAF:

1. A copy of the completed Labor Condition Application (LCA):  Once the LCA is certified, the employer must sign the LCA for inclusion in the PAF
2. Statement of the H-1B Worker's Wage - this requirement is simply for a statement of the H-1B worker's salary or wage
3. A summary statement of benefits offered to U.S. workers and H-1B workers - H-1B workers must be offered the same benefits as similarly employed U.S. workers.  To satisfy this requirement, employers should include a brief statement confirming that all employees are provided with the same benefits and provide a brief summary of what those benefits are.
4. Documentation providing the wage paid to the H-1B worker:
   • Full, clear explanation of the system the employer used to set the actual wage. "Actual Wage" is a technical term for the average wage that the employer pays all other individuals with similar experience and qualifications for the specific employment in question.  In other words, the actual wage is what the employee will be paid.
   • Full, clear explanation of the system the employer used to set the prevailing wage.  The employer's explanation of the prevailing wage must include a copy of the wage determination itself and a brief statement of the methodology used to determine the result;
   • Proof of satisfying union employees notification requirements (for non-union employees this means posting the notice). The employer must post two notices summarizing the contents of the LCA in at least two conspicuous locations for at least ten business days.  Once the notices have been posted for the 10 business days, the notices should be taken down, signed, and placed in the PAF.

How to Comply with Form I-9 and PAF Regulations

We recommend employers do the following to remain compliant with I-9 and PAF regulations:

• Download the M-274 Handbook for Employers: Guidance for Completing Form I-9
• Audit all Form I-9s
• Adopt smart electronic I-9 processes to ensure compliance with ever-changing government rules
• Update and maintain each PAF to comply with H-1B laws

Please contact us for professional guidance in developing immigration compliance plans and preparing for inspection.