There are several retention and compliance issues that employers face when it comes to meeting document retention requirements for three key immigration documents, including the Form I-9 Eligibility Process. While it is officially known as the Employment Eligibility Verification, Form I-9 is a form maintained by the U.S. Citizenship and Immigration Services. This form is used when verifying the legal authorization to work and identify all paid employees in the country as mandated by the Immigration Reform and Control Act of 1986. Accordingly, as the primary issue of discussion in this key note, employers must be aware of how to retain this document in accordance with this Act.
Document Retention Requirements for Form I-9
Pursuant to 8 C.F.R. § 274a.2(b)(2)(i)(A), employers are required, in addition to retaining original I-9 Forms for 12 months after the date of employment separation or for three years after the hiring date, whichever is later or, to have completed Form I-9 on file for every employee on the payroll. In addition, pursuant to 8 C.F.R. §§ 274a.2(b)(3), 1274.a.2(b)(3), employers may, although it is not a requirement, copy documents belonging to employees.
However, if copies of List A, B, and C documents of employees are made, then they should be stored with employee records, kept with the I-9 Forms, and be retrievable whenever needed. This is because pursuant to 8 C.F.R. §§ 274a.2(b)(2)(ii), the Forms I-9 and any associated documents should be readily available for inspection, which usually comes after a three business days’ notice by authorized officials for federal agencies such as the Department of Justice (DOJ), the Department of Labor (DOL), and the Department of Homeland Security (DHS).
Another recordkeeping requirement employers must know is that pursuant to 8 C.F.R. § 274a.2(b)(2)(i), the I-9 forms may be stored electronically, in microfiche/microfilm, on paper, or a combination of either way. Importantly, as long as it would be possible to render the documents for inspection following a three-business days request, the I-9 Forms and any associated documents may be retained at an off-site storage facility or as completed paper forms onsite.
In Part III of this new series and our blog post titled “Electronic Retention Requirements for Form I-9,” we will move the discussion forward by hammering on the requirements for electronic retention for Form I-9.
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.