It may seem like good sense to make and retain copies of important documents that the federal government requires a business to review, but when to retain a copy of I-9 related documents is a tricky question that can quickly send a business afoul of the law if the business isn’t paying close attention.
Immigration and Customs Enforcement has more than quadrupled worksite enforcement investigations in the last year. With the increased enforcement efforts, this is a great time for U.S. businesses to reevaluate the company’s procedures to ensure that it remains in full I-9 compliance. Depending on how the business operates, keeping copies of I-9 supporting documentation may be the right answer – if it is done the right way. Otherwise, optional document retention could create more problems than are solved.
Why make copies of I-9 documents?
On the surface, it may seem like a good idea to make copies of the documentation presented by new employees for Employment Eligibility Verification forms (I-9s). There are some advantages, but the one glaring disadvantage is if the company is participating in wrongdoing (knowingly or not) — the documents may give investigators conclusive proof of a company’s pattern of knowingly hiring employees with false documents.
Here are some guidelines on copying and retaining of I-9 documents:
- Maintaining copies of verification documents will make internal audits easier because the business can evaluate not only the completeness and accuracy of the I-9s themselves, but also that of the supporting documentation.
- It may be helpful in handling E-Verify as federal and state laws sometimes differ on the subject. Instead of navigating the types of copies one must keep for which jurisdiction, keeping copies of all documents will solve that problem.
- Being able to offer up a business’ documentation to auditors helps to demonstrate good faith. Assuming the paperwork is in order, it can show that the documentation reviewed as an employer reasonably appeared to be authentic, the standard to which a business is held. There can be little question, then, of knowingly hiring people with false documents.
- Keeping copies won’t serve as a defense, but it may help reduce civil fines for common errors or as a mitigating factor in the determination of fines.
- If the company is ever accused of discrimination, copies of these documents may come in handy to defend against the claim.
Should a business decide to go this route, make sure to make and retain the documentation properly, in accordance with federal regulations. We’ll discuss those parameters below.
Making Copies of I-9 Support Documents
Federal law requires a company to maintain a completed I-9 for every employee from the date of hire (the first day for which he/she is paid) until either three years from the date of hire or one year after termination, whichever is later. This document must be maintained either on paper, microform or electronically, in accordance with Department of Homeland Security (DHS) standards.
A company may choose electronic (e.g. a scan) or paper copies of the documentation that an employee presents to verify his/her identity and/or work authorization, but if copies are made, the company must keep copies of these types of documents for every single employee. A company cannot pick and choose which employee’s documents to copy because this can be seen as discriminatory. In order to avoid violating discrimination laws, copy the optional documents of every employee or no employee. Always ensure that all relevant personnel are aware that there needs to be a legal reason to retain documents other than for the purpose of verification for the Form I-9.
Whichever way a business decides to go on the issue of retaining copies, keep in mind that a full set of documents does not replace the I-9, it only supports it. The I-9 must also be properly and fully completed, retained and available for inspection should federal authorities give notice of intent for an audit or worksite investigation. Copies of the types of documents we’ve discussed should be kept either with the I-9 or the employee’s records, whether in paper form or with appropriate software that complies with all DHS standards. Remember that all such records must be considered sensitive and therefore be securely stored to protect the privacy of all employees.