I-9 Record Retention Requirements

I am sure by this time you know that the Immigration and Reform Control Act of 1986 prohibits employers from hiring persons who are not authorized to work in the United States. Since that time there have been some significant changes including a new form. Keep in mind that you are not permitted to tell the new hires what documentation to present for their verification. When we conduct HR audits we find that the client tell new hires to bring in their social security cards and drivers license. This is a clear violation. Show the I-9 form to the individual and let them choose from the appropriate categories.

The retention requirements of these forms is rather simple. They must be retained for at least three years after the date the employee was hired or one year after after the date the employee separates from employment. Verification records issued by STATE employment agencies must also be retained. The employer is permitted to keep certain copies of any documentation provided by the employee as support for the I-9, however, unless this practice is carried out CONSISTENTLY I would recommend not keeping copies simply because sometimes things slip between the cracks and copies don’t get made for everyone. I had one client who thought the I-9’s only applied to people of Mexican descent. They must be kept for everyone and that now includes the owner of the company and family members! So, keep the copies of the verification records for all, or none at all. Keep in mind that these records must be generally stored in a format that allows them to be reproduced for inspection within 72 hours. Do not store the records (I-9’s) in the personnel files. This is a clear violation and can cause fines to be levied up to $1,000 per violation. Keep the I-9’s all together in a folder with the current employees and a separate folder with the former employees going back one year.

On June 15, 2006, the United States Immigration and Customs Enforcement published an interim rule that allows employers to sign and retain I-9 forms electronically. The new rule does not require employers to use a particular system but does require that the method utilized include:

• Reasonable controls to ensure the integrity, accuracy and reliability of the system;
• Reasonable controls designed to prevent and detech unauthorized or accidental use;
• An inspection and quality assurance program; and
• A retrieval system that includes an indexing system permitting searches.

These are the requirements for all employers. The size of the company does not matter! The toughest part is remembering to be consistent and ensuring that each form is properly filled out and signed by the appropriate parties.