The Law @ Work

Do Employers Need to Keep Copies of I-9 Backup Documents?

by Marylou V. Fabbo

We recently posted on Immigration@Work an article that provides guidance on employer whether employers should keep copies of documents employees provide for I-9 purposes. Because we thought this information may be helpful to all employers, we’ve decided to share it with our Law@Work subscribers. 

Within three business days of the date the employee begins employment, employees are required to present original documents (not copies of documents) that demonstrate their identity and employment authorization.  Employers are required to examine the original documents to determine if it reasonably appears to be genuine and relates to the person presenting it.  Some, if not most, employers make copies of or scan the documents and keep them with employees’ I-9s.  (Some employers don’t fill out Section 2 of the I-9, which is where they list the identity and authorization documents presented, and simply staple copies of the documents to the incomplete I-9, which is not legally compliant.  Making photocopies of the documents does not take the place of completing Form I-9.)  I-9 files can become voluminous with copies of social security cards, drivers’ licenses, passports, etc.  If you ‘re an employer that is making an effort to reduce your carbon footprint, you may want to reconsider making copies of the I-9 employment authorization and identity documents going forward (unless you use E-Verify, in which case you must retain certain documents such as the U.S. passport or passport card, permanent resident card, and Form I-766, Employment Authorization Document).

Employers Often Keep More than They Need.

While employers must keep I-9s for the time period required by law, employers that do not use E-Verify are not required to keep copies of documentation received from the employee that demonstrates the employee’s identity and authorization to work in the United States.  However, if an employer chooses to retain copies of an employee’s documents, the employer must do so for all employees, regardless of actual or perceived national origin or citizenship status, or the employer runs the risk of violating anti- discrimination laws.

If an employer chooses to make copies or electronic images of the employee’s documents, the documents must either be retained with the corresponding Form I-9 or stored with the employee’s records in accordance with the standards for electronic records retention as specified in the applicable regulations.  Further, if copies or electronic images of the employee’s documents are retained, they must be made available when DHS or another federal government agency conducts an inspection or audit.

Changing Your Retention Practice.

If you do not use E-Verify and have been keeping copies of the documents employees show you to establish identity and authorization to work, and you want to save paper, available storage, and/or time, you can stop doing so going forward.  You can start the practice of not retaining hard or scanned copies when you have new hires.  And that means all new hires. For those for whom you have previously retained the backup documentation, you must keep it—don’t throw it away!  If you do decide to make a change in your practice of keeping copies or scans of the documents employees give to you, you should write a (signed and dated) memo to include in your I-9 file as to when and why you made the change.  Keep in mind, of course, that the “why” can’t be an impermissible or illegal reason.

If you found this article useful and would like to learn more about workplace immigration issues, subscribe to Immigration@Work, Skoler Abbott’s blog dedicated to providing information and analysis related to the employment of immigrants and foreign workers.

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