The 2026 Midterms and Form I-9: What Changes for Employers, and When
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Keep every employee's Form I-9 for as long as they work for you, and after they leave, keep it until three years after their date of hire or one year after their employment ended, whichever is later. That's the federal I-9 retention requirement in 8 CFR 274a.2(b)(2)(i)(A), and it applies to every employee hired after November 6, 1986, including people who quit a week after starting.
The M-274 gives a shortcut for former employees. Someone who worked for you less than two years gets three years from their first day of employment, and someone who worked more than two years gets one year from their last day (M-274, Section 10.0). Our free I-9 Retention Calculator does the math for one employee at a time.
The rule covers every employee on your payroll or otherwise paid by you, citizen or not. You can't discard a current employee's Form I-9, or any copies you made of their documents, for any reason. The retention clock only starts when the person stops working for you.
You only have to keep the pages that you or the employee filled in. The Lists of Acceptable Documents page, the instructions, and blank supplement pages can go. Never mail completed forms to USCIS or Immigration and Customs Enforcement (ICE), since they stay with you until an inspecting officer asks for them.
Approved leave doesn't start the clock either. The M-274 treats approved paid or unpaid leave (illness, pregnancy, parental leave, vacation, study, union business, a family member's illness) as continuing employment, so an employee on leave still has a current I-9 (M-274, Section 8.0).
Calculate two dates, three years after the first day of employment and one year after the last day worked, and keep the form until the later one. The table runs the rule on three common cases.
| Employee | Rule that applies | Keep the I-9 until |
|---|---|---|
| Hired Jan. 6, 2025, left Mar. 14, 2026 | Worked under two years, so three years from hire | Jan. 6, 2028 |
| Hired June 1, 2019, left Sept. 30, 2025 | Worked over two years, so one year from the last day | Sept. 30, 2026 |
| Hired Mar. 1, 2024, still employed | Current employee | No destruction date yet |
Rehires change the starting point. You can rehire someone within three years of the date their previous Form I-9 was completed and record the rehire in Supplement B of that same form (M-274, Section 6.2). When you do, the three years run from the date the original form was completed, and the one year runs from the end of the later job (8 CFR 274a.2(c)(2)). Past three years, the employee completes a new Form I-9.
The I-9 Retention Calculator asks for a hire date and either a termination date or "still employed." It returns a status of Safe to Destroy, Upcoming, or Keep on File, the exact destruction date, a timeline, and which side of the later-of rule set the date. For a current employee it tells you not to destroy the form and shows the earliest date the form could become eligible.
It's built for one employee at a time, such as a manager asking about a box of old files or HR checking a single termination. For running the same rule across a whole terminated population, our I-9 retention and purge playbook covers the purge workflow and how termination dates should reach your I-9 records.
A form destroyed early can't be recreated, and a form kept forever stays open to inspection. Our team can review your retention dates before an inspection through I-9 audit services, or you can talk it through on a free compliance call.
Paper forms with original signatures can sit on-site or at an off-site storage facility, as long as you can present them within three business days of an inspection request. Microfilm and microfiche are allowed too. You can also scan a signed paper form, store it electronically, and then destroy the paper original (M-274, Section 10.1).
An electronic system has to meet the standards in 8 CFR 274a.2(e) through (i). The M-274 summarizes them as:
The system also needs a permanent record of every time someone creates, updates, or corrects a form, showing the date, the person, and what they did. Changing systems is allowed as long as each one meets the standards, and you have to keep a description of each system and its indexing on hand for inspectors.
Copying employee documents is optional for most employers. Make copies for one employee, though, and you keep them with that person's Form I-9, and you copy for every employee regardless of national origin or citizenship status (M-274, Section 10.2). E-Verify employers are required to copy a U.S. passport, passport card, green card, or Employment Authorization Document when one is presented (E-Verify User Manual 2.2.2), and employers using the remote alternative procedure keep copies of every document they examine.
DHS, the Justice Department's Immigrant and Employee Rights Section (IER), and the Department of Labor can all inspect Forms I-9, with at least three business days' notice (M-274, Section 10.3). You present only the forms the officer asks for, along with any document copies and audit trails stored with them.
ICE lists failure to present a Form I-9 on request as a substantive violation (ICE Form I-9 inspection fact sheet). Paperwork violations run $288 to $2,861 per form under the current Justice Department adjustment (28 CFR 85.5). At those rates, seven forms purged too early out of ten requested would come to $2,016 to $20,027 before anything else on the remaining forms is counted. More detail is in I-9 penalties in 2026 and what happens during an ICE I-9 audit.
"The retention mistakes I see split evenly between employers who keep every form forever and employers who purge too early," says Patricia Duarte, Director of Compliance at i9 Intelligence. "The 'later of' rule is deceptively simple — but most HCMs don't calculate it correctly, and most companies don't realize it until ICE asks for a specific employee's I-9 and there's a three-day window to produce it. Over-retention hurts in a different way: every form you've kept is subject to inspection, which expands your audit exposure."
If an HRIS or document system decides when I-9s get deleted, check that its rule is the later-of calculation and that it never deletes a current employee's form. Testing it against a few long-tenured terminations and a few short ones will show whether the dates match what the calculator gives you.
For the whole time the person works for you, and after they leave, until three years after the date of hire or one year after employment ends, whichever is later.
It depends on tenure. Under two years of employment, keep it three years from the first day of work, and over two years, keep it one year from the last day. The retention calculator gives you the exact date.
Only if they choose to copy, or if they use E-Verify and the employee presents a passport, passport card, green card, or EAD. Once you copy for one employee, copy for all of them and keep the copies with each Form I-9.
On paper, microfilm, microfiche, or an electronic system that meets the federal standards, anywhere you can produce them within three business days of an inspection request. Keeping I-9s separate from personnel files means an inspection request only pulls I-9 records.
Yes, once the signed form is securely stored in an electronic system that meets the federal standards.
No. You keep them, and you only hand them over when DHS, IER, or the Department of Labor asks during an inspection.
ICE treats a form you can't present as a substantive violation, with paperwork fines of $288 to $2,861 per form under the current adjustment.
Our team of I-9 and E-Verify experts can help: