One of the most common compliance questions employers ask—particularly those that regularly file H-1B petitions—is how long immigration, employment eligibility, and payroll records must be retained. Unlike tax or general corporate records, immigration-related documents are governed by overlapping rules enforced by multiple agencies, including U.S. Citizenship and Immigration Services, the Department of Labor, and Immigration and Customs Enforcement. Each agency applies different retention standards depending on the document type, which often leads to confusion and inconsistent internal practices within HR departments.
With respect to H-1B petition files, employers should retain copies of all H-1B petitions that are currently valid, regardless of whether the beneficiary continues to work for the company or whether the petition has later been revoked. These records may be retained entirely in digital format, and there is no requirement that physical copies be maintained in the office. H-1B petitions that are no longer valid may be shredded once scanned copies have been preserved, and the same approach may be taken with petitions that were denied and never approved, provided the employer is confident there is no other business or compliance-related need to retain them.
Labor Condition Applications are governed by a separate and more prescriptive regulatory framework. Every certified LCA must have a corresponding Public Access File, which must be made available for inspection within one working day of filing the LCA. The Public Access File must be retained for one year beyond the last date on which any H-1B worker is employed under that LCA. If an LCA is withdrawn, the Public Access File must be retained for one year from the date of withdrawal. Contrary to a common misconception, Department of Labor regulations permit Public Access Files to be maintained either electronically or in physical format, so long as the documents can be produced promptly upon request. This allowance is reflected in the Department of Labor’s H-1B regulations at 20 C.F.R. § 655.760, which authorize electronic recordkeeping for LCA-related documentation. It is also important to distinguish the Public Access File from the H-1B petition itself, as the PAF contains wage documentation, the certified LCA, posting notices, and required summary statements, but does not include the immigration forms filed with USCIS.
PERM labor certification files are subject to a strict five-year retention requirement measured from the date the PERM application is filed, not from the date of approval or denial. During this five-year period, employers must retain all recruitment and supporting documentation, including prevailing wage determinations, recruitment advertisements, resumes received, interview notes, recruitment reports, and any audit-related correspondence. These materials do not need to be retained in physical form and may be scanned and stored electronically. Employers should periodically review their PERM inventory, retain complete files for all PERMs filed within the last five years, and securely dispose of older files that fall outside the regulatory retention window.
There is no statutory requirement that employers retain physical Form I-140 immigrant petition files once they have been filed. However, employers should retain scanned copies of the filed petition, approval notice, and supporting documentation. I-140 petitions frequently become relevant long after filing or approval, including in connection with successor-in-interest filings, priority date retention, portability assessments, and Notices of Intent to Revoke issued by USCIS. Maintaining electronic copies of I-140 filings allows employers to respond efficiently to such issues if they arise.
Employers are not required to retain Form I-485 adjustment of status applications. Adjustment of status is fundamentally an employee-owned filing, and employees should be maintaining their own complete copies of these materials. If an HR department happens to have copies of I-485 filings or related documentation in its possession, those records may be scanned and forwarded to the employee for their own files. Once that is done, the employer may shred its copies unless there is a separate business or compliance-related reason to retain them.
Form I-9 records are governed by a separate and well-defined retention rule. Employers must retain each Form I-9 for three years from the date of hire or one year after the date employment ends, whichever is later. Both physical and electronic formats are permitted, provided electronic systems comply with ICE audit and integrity standards. As a compliance best practice, I-9 forms should be stored separately from personnel files to limit unnecessary document production during audits or inspections.
Payroll and wage records for H-1B employees are another area where employers often under-retain. Department of Labor regulations require payroll records to be retained for at least three years. These records should document wages paid, wage rates, any changes in compensation, and evidence that the employee was paid at least the required wage listed on the applicable LCA. Digital retention is permitted and often preferable. Payroll records are frequently requested during Department of Labor investigations, H-1B site visits, and back-wage assessments, making proper retention essential for H-1B compliance.
In practice, most immigration-related records may be retained electronically, and employers should exercise caution before destroying documents that may later become relevant in audits, enforcement actions, or employee mobility matters. This discussion is intended to provide general informational guidance only and should not be construed as legal advice. Employers should consult with their immigration or employment counsel to obtain advice specific to their circumstances, particularly where there is pending or anticipated litigation, a government investigation, or other compliance exposure, as document retention obligations may vary significantly based on the facts involved.
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