What are the I-9 document retention requirements?

Since 1986, I-9 compliance has been mandatory, but it is especially important now, as Immigration and Customs Enforcement (ICE) is auditing and investigating companies at a near unprecedented rate. ICE has audited thousands of businesses in the past year, and its acting director, Thomas Homan, is promising to audit thousands more before the fiscal year is out, which ends on September 30. In addition to those audits and investigations, ICE has arrested hundreds of business owners and managers, pursuing felony charges in some instances.

All of that is to say that I-9 compliance is critical for avoiding fines and potential criminal penalties. But I-9 compliance is an umbrella term that means several things. It refers to the deadlines that companies must meet in putting together their I-9 forms. It also means utilizing the proper documents in verifying an employee’s identity and work authorization.

But a part of I-9 compliance that is often overlooked, or misunderstood, is proper I-9 document retention. I-9 forms must be maintained in a particular way to remain within I-9 compliance, whether the forms are kept as paper copies or electronically.

Here is what ICE demands from employers regarding I-9 retention:

  1. How long must I-9 forms be kept? I-9 forms must be maintained by the employer for three years following the employee’s hire date or one year following their termination date, whichever is later.
  2. Can employers keep a copy of the I-9, or do they need an original? If the employer intends on keeping their I-9 forms in paper format only, they must keep the original form with the original handwritten signatures. Copies can be made, but they cannot be used to replace the original form. If, however, a copy is uploaded to an electronic database for storage, the original I-9 form may be disposed of.
  3. How should electronic I-9 forms be maintained? ICE has stringent regulations regarding how electronic forms are kept, and they will require the employer to invest in a true recordkeeping system, and not just a hard drive.Any I-9 form uploaded to an electronic database must be completely legible and must be added with no changes or additions to the form. If the form is filled out using an electronic system, the employee must be given a physical copy of the instructions prior to filling out the I-9 form.Further, an electronic retention system is only compliant if it can reliably guarantee the integrity and accuracy of all maintained I-9 forms. The retention system must be protected against unauthorized alteration or creation of I-9 forms, and should also protect against accidental modification or creation of I-9 forms. The system must also detect any attempts to delete, modify or add I-9 forms, and provide a function that allows selected personnel to review these attempts. Finally, an electronic retention system must be able to retrieve any I-9 form using a search function. Paper copies produced by the system must be legible.

    If the employer prefers its new hires to fill out their form and sign it electronically, there are a few more stipulations that the employer must follow. One, the signature must be attached to the document when the signature is made and the transaction complete. Two, the system must create and maintain a record that verifies the identity of the person producing the signature. Three, the system must produce a printed confirmation of the I-9 submission to the person signing the document. It is critical that electronic signatures are captured precisely, as ICE may consider the I-9 form incomplete if they are not.

Those are the mandatories regarding I-9 form retention, but they are only the bare minimum. When audits do occur, many employers find that their I-9 form recordkeeping processes are disorganized and inefficient. And disorganized I-9 recordkeeping can lead to lost documentation.

To keep things organized and easily retrievable, consider doing the following:

  1. Keep I-9 forms separate from other personnel records – This may be a legal matter in some cases, as items like immigration status, marital status and nation of origin are protected classes of information. Store I-9 forms in a separate place and ensure only a few people in the human resources department have access to them.
  2. Organize a binder to ensure effective organization – It’s best to keep the company’s I-9 forms in one place for quick perusal. This binder should only be available to select members of the human resources department, and the very first thing in the binder should be a list of all important procedures associated with I-9 compliance. For example, this section may have I-9 form instructions, security procedures if records are kept electronically, and the results of any previous I-9 audits.Inside the binder, I-9 forms associated with active employees should be maintained alphabetically. It’s wise to attach a note to each form (don’t write on the form) that lists the retention deadline requirement.When an employee is terminated, move their form to a different section, as the retention requirement for their form is different. The section dedicated to terminated employees should be organized by the retention deadline date.
  3. Destroy I-9 forms as soon as their retention deadline date is met – Don’t hold onto I-9 forms any longer than is necessary, as this will only cause confusion. If the retention deadline has passed, pull the form and shred it. Some companies will record the shred date, though this isn’t necessary.

I-9 form retention is a critical part of I-9 compliance, and it must be taken as seriously as filling out the form in the first place. Following the above processes, though, will ensure an employer stays compliant with all laws.