As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. To that end, this blog post is Part III of our series on “Recordkeeping Requirements for Business Immigration Documents.”
In Part II, we hammered on the document retention requirements for Form I-9 and mentioned that 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, to have completed Form I-9 on file for every employee on the payroll. In addition, we also added that 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.
Another key thing we mentioned is that, 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).
To move this discussion forward, we have hammered on the electronic retention requirements for Form I-9 in our blog post titled “Electronic Retention Requirements for Form I-9” and Part III of this series.
Electronic Retention Requirements for Form I-9
According to the United States Citizenship and Immigration Services (USCIS), film stock that is capable of preserving and allowing the access and use of the images throughout the whole period of retention may be chosen. As per the agency’s guidelines, microfiche or microfilm must meet certain requirements that would necessitate retention. For instance, for the purposes of accessing any particular records promptly and effectively, a detailed index of all data should be included. Additionally, when being reproduced on paper or displayed on a microfiche or microfilm reader, the microfiche or microfilm must exhibit a high level of readability and legibility.
As another critical electronic retention requirement for Form I-9, the employer must provide, upon receiving an inspection notification, the microfiche or microfilm and a reader-printer that (1) has the capability of displaying and printing a complete information page, (2) is in good working condition, properly maintained, and clean, and (3) provides safety features.
Most importantly, in order to support the reliability, accuracy, and integrity of the storage system, the employer must create certain controls if they choose the electronic retention method. Pursuant to 8 C.F.R. §§ 274a.2(b)(2)(iv), 274a.2(e)(1), the electronic storage system must:
- Possess a high level of readability and legibility when reproduced on microfiche, microfilm, or paper or displayed on a video display terminal.
- Have the capability of reproducing hard copies that are both readable and legible.
- Incorporate a detailed data index for prompt and easy access to any particular record.
- Include a quality assurance and inspection program that, in addition to incorporating periodic checks of electronically stored I-9 Forms, including the electronic signature, if used, regularly evaluates the storage system or electronic generation.
- Incorporate controls to facilitate an audit trail so that any change or alteration to the form since it was created is stored electronically, and any appropriate government agency carrying out an inspection can access the forms.
- Incorporate controls for detecting and preventing the accidental or unauthorized creation of, besides the deterioration of, deletion of, or alteration of, an electronically stored Form I-9, including the electronic signature, if applicable.
- Incorporate reasonable controls for ensuring the electronic storage system’s reliability, accuracy, and integrity.
In Part IV of this new series and our blog post titled “Re-verification Requirements for Form I-9,” we will move the discussion forward by hammering on the re-verification requirements 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.