(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 29 CFR part 503 and this subpart, 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 receives the letter of withdrawal provided in accordance with Sec. 655.62. For the purposes of this section, records and documents required to be retained in connection with an H-2B Registration must be retained in connection with all of the Applications for Temporary Employment Certification that are supported by it.
(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 to the Department and other Federal agencies 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 Sec. 655.16;
(ii) Advertising as specified in Sec. Sec. 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in Sec. 655.43;
(iv) Contact with bargaining representative(s), or a copy of the posting of the job opportunity, if applicable, as specified in Sec. 655.45(a) or (b); and
(v) Additional employer-conducted recruitment efforts as specified in Sec. 655.46;
(3) Substantiation of the information submitted in the recruitment report prepared in accordance with Sec. 655.48, such as evidence of nonapplicability of contact with former workers as specified in Sec. 655.43;
(4) The final recruitment report and any supporting resumes and contact information as specified in Sec. 655.48;
(5) Records of each worker's earnings, hours offered and worked, location(s) of work performed, and other information as specified in Sec. 655.20(i);
(6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in Sec. 655.20(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 Sec. 655.20(r);
(8) Evidence of contact with any former U.S. worker in the occupation at the place of 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 Sec. 655.20(w), and that the U.S. worker either refused the job opportunity or was rejected only for lawful, job-related reasons, as specified in Sec. 655.20(r);
(9) The written contracts with agents or recruiters as specified in Sec. Sec. 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 Sec. 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 Sec. 655.20(y);
(11) The H-2B Registration, job order and a copy of the Application for Temporary Employment Certification. If and when the Application for Temporary Employment Certification and H-2B Registration is permitted to be electronically filed, a printed copy of each adjudicated Application for Temporary Employment Certification, including any modifications, amendments or extensions will be signed by the employer as directed by the CO and retained;
(12) The 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 Sec. 655.5.
(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 29 CFR part 503 and this section so that the Administrator, WHD may copy, transcribe, or inspect them. [77 FR 10164, Feb. 21, 2012]