Retention Period For I-9s

I just want to clarify what appears to be a misunderstanding of the I-9 retention requirements. As I reported several weeks ago, as well as recently at several speaking engagements, ICE is gearing up to start aggressively auditing I-9s for targeted employers. It’s not just ICE. Last week the U.S. Department of Labor conducted a wage and hour audit of one of our clients. After they finished, the agent requested to see the I-9s.

The retention requirements are simple. Create a folder with all of your current employees going back three years. If you have employees who have worked longer than three years their I-9s do not have to be in the folder but do not discard them. Keep them separately in another folder and do not put them in the personnel files. These means you have to purge the 3 year folder every year. Can you legally leave all of the current employee I-9s in the same folder? Yes, but why give them more than what’s required.

The other question that has recently come up is the retention requirements for former employees. The retention period is technically one year, however, the I-9 must be kept either for three years after the date the employee was hired or one year after the date employee terminates employment, whichever is later.

What’s the safe course? Keep the folder with all of the current employees in one section, and the terminated employees in another section, all going back three years.  Never discard any of these records after the three years. Purge them and keep them in storage.