(a) Entities required to retain documents. All employers filing an Application for Temporary Employment Certification requesting H-2B workers are required to retain the documents and records proving compliance with 20 CFR part 655, subpart A and this part, including but not limited to those specified in paragraph (c) of this section.
(b) Period of required retention. The employer must retain records and documents for 3 years from the date of certification of the Application for Temporary Employment Certification or from the date of adjudication if the Application for Temporary Employment Certification is denied or 3 years from the day the Department of Labor receives the letter of withdrawal provided in accordance with 20 CFR 655.62.
(c) Documents and records to be retained by all employer applicants. All employers filing an H-2B Registration and an Application for Temporary Employment Certification must retain the following documents and records and must provide the documents and records in the event of an audit or investigation:
(1) Documents and records not previously submitted during the registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in 20 CFR 655.16;
(ii) Contact with former U.S. workers as specified in 20 CFR 655.43;
(iii) Contact with bargaining representative(s), copy of the posting of the job opportunity, and contact with community-based organizations, if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
(iv) Additional employer-conducted recruitment efforts as specified in 20 CFR 655.46;
(3) Substantiation of the information submitted in the recruitment report prepared in accordance with 20 CFR 655.48, such as evidence of nonapplicability of contact with former workers as specified in 20 CFR 655.43;
(4) The final recruitment report and any supporting resumes and contact information as specified in 20 CFR 655.48;
(5) Records of each worker's earnings, hours offered and worked, and other information as specified in § 503.16(i);
(6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 503.16(j).
(7) Evidence of contact with U.S. workers who applied for the job opportunity in the Application for Temporary Employment Certification, including documents demonstrating that any rejections of U.S. workers were for lawful, job-related reasons, as specified in § 503.16(r);
(8) Evidence of contact with any former U.S. worker in the occupation and the area of intended employment in the Application for Temporary Employment Certification, including documents demonstrating that the U.S. worker had been offered the job opportunity in the Application for Temporary Employment Certification, as specified in § 503.16(w), and that the U.S. worker either refused the job opportunity or was rejected only for lawful, job-related reasons, as specified in § 503.16(r);
(9) The written contracts with agents or recruiters, as specified in 20 CFR 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in 20 CFR 655.9;
(10) Written notice provided to and informing OFLC that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the Application for Temporary Employment Certification, as specified in § 503.16(y);
(11) The H-2B Registration, job order, and a copy of the Application for Temporary Employment Certification and the original signed Appendix B of the Application.
(12) The approved H-2B Petition, including all accompanying documents; and
(13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in § 503.4.
(d) Availability of documents for enforcement purposes. An employer must make available to the Administrator, WHD within 72 hours following a request by the WHD the documents and records required under 20 CFR part 655, subpart A and this section so that the Administrator, WHD may copy, transcribe, or inspect them.
[80 FR 24130, Apr. 29, 2015, as amended at 84 FR 62447, Nov. 15, 2019]