November 2, 2017

Miroslava Orduño Rincón addresses document retention regarding employees’ Form I-9

Miroslava’s response:

A: Form I-9 regulations permit an employer to determine whether or not to keep copies of the documentation presented by the employee. The basic requirement is consistency. An employer may commence or end the practice of keeping the supporting documents at any time, as long as the practice is carried across all employees going forward, regardless of national origin or citizenship status. Failure to be consistent could violate anti-discrimination laws.

Retaining the documents presented by the employee may serve to show good faith during a government audit and may even alleviate civil fines for basic errors, but this isn’t to say that these copies relieve the employer from any obligation to properly execute form I-9. Additionally, these copies facilitate the internal audits that every employer should periodically conduct of their I-9s. However, these photocopies may not be used for any other purpose.

Should your company decide to end the existing practice of retaining these documents, please remember that you may not shred previously copied documents. Department of Homeland Security regulations dictate that once copies are retained, they must be attached to Form I-9 or kept with the employee’s personnel file.