The purpose of Form I-9 is to help employers verify the identity and employment authorization of each person they hire. Both employers and employees complete this form, and to do so, employees need to provide specific forms of identification – either one document from List A or one document from both List B and List C.
In addition to this, Form I-9 is subject to unique record retention laws, and once filed, it has to be stored in a safe, reliable, and accessible location. Therefore, employers need to be careful to follow Form I-9 retention rules and keep completed forms for a certain amount of time after their employees stop working for them.
Importance of Form I-9 Retention
When completing Form I-9, employers collect personal information regarding their employees. For this reason, it is crucial that they retain Form I-9 documentation and store it correctly. To meet Form I-9 retention rules, employers are obligated to keep completed Forms I-9 for all employees for 3 years after the date they hire an employee or 1 year after the date employment is terminated, whichever is later.
All Form I-9 information needs to be stored safely and securely but also needs to be accessible as there are several entities that may request forms for inspection. The forms may be reviewed by officers of the Department of Homeland Security, the Immigrant and Employee Rights Section at the Department of Justice, as well as the Department of Labor upon request.
Therefore, when it comes to Form I-9 retention, employers should store the forms either on-site or at a secure off-site storage facility. Wherever method employers choose, they need to make sure that Form I-9 information is easily accessible. If government officials request access, then the documents must be presented within three days. Employers who do not meet or ignore specific procedures regarding Form I-9 retention may risk facing penalties. If protected information is exposed to unauthorized individuals or used as a means of discrimination, the victim has the legal right to sue their employer.
According to the USCIS, Form I-9 may be stored in a few different formats, including paper, microfilm or microfiche, and electronic documentation. However, to ensure meeting Form I-9 retention rules, employers need to take specific measures whatever format they choose.
Paper Retention of Form I-9
Form I-9 can be signed and stored in paper format. However, in this case, employers are advised to keep this form separated from other documentation in order to better accommodate any inspection requests. Also, it is important to note that paper retention of Form I-9 can prove problematic in multiple ways. There is a greater chance of misplacing or losing Form I-9 documentation if it is stored in paper form. Also, something might physically happen to the document making it unreadable.
Retention of Forms I-9 Using Microfilm and Microfiche
Employers may store Forms I-9 on microfilm or microfiche. However, to do so properly, they have to follow DHS compliance standards and make sure the film used will maintain the integrity of the image and allow clear access for the duration of the retention period. Also, if requested by an officer, Form I-9 documentation needs to have a safety feature, be in clean condition, and display a page fully.
Electronic Form I-9 Retention
Form I-9 can be electronically generated and retained, in accordance with DHS standards, including guidelines for storing electronic I-9s, such as:
- Controls to ensure the integrity, accuracy, and reliability of the system,
- Controls to detect and prevent the unauthorized or accidental creation, alteration, or deletion of stored Forms I-9, including the electronic signature, if used,
- An inspection and quality assurance program that regularly evaluates the system, and
- Controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by inspectors.
Remote Inspection Policy
Since the COVID-19 pandemic became a national emergency in March 2020, many employers shifted to a remote workforce. This has caused an additional set of challenges due to the requirement to physically inspect employment identity and eligibility documents, and DHS introduced flexibility in relaxing the physical inspection rules. As a result, employers who had employees working remotely because of the pandemic were allowed to examine the Form I-9 documents virtually. With no end in sight for the pandemic, these temporary policies will probably be extended past April 30 and perhaps indefinitely until a permanent remote examination option is announced.
Furthermore, as employees begin returning to work, Form I-9 retention will continue to pose challenges. In case employers did not clearly communicate to their remote employees that securing and retaining their original Forms I-9 and verification documents was a requirement, they may now face additional problems as some documents may have been lost or misplaced.
Meeting Form I-9 Compliance Requirements
In today’s complicated maze of compliance requirements, employers may find it difficult to meet all the requirements necessary to ensure Form I-9 compliance. In addition to this, they need to carefully consider how to respond to additional challenges caused by the COVID-19 pandemic.
Taking this into consideration, creating an effective and compliant I-9 program can not only alleviate unnecessary liability but also go a long way in establishing a good faith defense in case of any ICE audits. This approach can also provide employers with an opportunity to review Form I-9 practices introduced in response to the pandemic and correct any missteps made during this challenging time. Also, employers can rely on advanced and web-based technology to fully automate the completion, signature, storage, and tracking of Forms I-9, while staying compliant with the latest developments in USCIS and ICE regulations and procedures.