How to Retain and File I-9 Forms

I-9  forms should always be maintained separately from personnel files and retained according to the U.S. Citizenship and Immigration Services (USCIS) retention requirements: "I-9 forms should be retained for three years after the date of hire, or one year after the date employment ends—whichever is later." The Form I-9 filing and retention requirements can be confusing. The following simple steps can clarify best practices for ensuring organizations file and retain their I-9 forms in a manner that is ready for an audit or inspection and that meets both Form I-9 retention requirements. Current employees should always have a Form I-9 on file; only after they are terminated will it be necessary to calculate retention requirements.

Step 1: Maintain I-9 Forms Separately from Personnel Records

Forms I-9 should be maintained separately from employee personnel files. Most often, I-9s are maintained in a file (electronic or hard copy) or binder that is accessible only to a few individuals in the human resource department. Supervisors or managers should not have regular access to I-9 forms and documents because national origin, immigration status, marital status and other protected information may be disclosed on these forms or in the documents provided for their completion.

Step 2: Develop an Administrative Section

A Form I-9 file or binder often has three separate sections. The first section is for administrative information. It may include any relevant policies and procedures. Employers may want to include the following types of documents in the administrative section:

• A copy of the Handbook for Employers and Form I-9 instructions. (The most recent Form I-9, Instructions for Form I-9 and the Handbook for Employers are available at the I-9, Employment Eligibility Verification page of the USCIS website).
• Documentation or spreadsheets for tracking reverifications and temporary visas that will expire.
• Security policies and procedures if the employer maintains I-9 records electronically.
• Documentation of the results of any internal Form I-9 audits conducted. This helps support any claims that the organization has taken proactive steps to correct past mistakes or if I-9 documents are somehow lost. This is also where employers may document what occurred and why new Forms I-9 were completed well after the hire date. This documentation could make a difference in the amount of financial penalties assessed to an organization if it is subjected to a formal Form I-9 audit.

Step 3: File Active Employee I-9s Alphabetically

The second section of the binder or file would include the active employee I-9 forms. Active employee I-9 records are often maintained alphabetically by last name so that they can be easily audited against a current payroll list.

Step 4: Develop A Terminated Employee Section

The third section is for terminated employee Forms I-9. When an employee is terminated, employers should pull the Form I-9 from the active employee section and determine retention requirements before filing in the terminated Form I-9 section of the binder or file. Employers need to determine two retention requirement dates under the Form I-9 retention rule and retain the I-9 until the later of the two dates. Step 5 explains this process.

Step 5: Assess Retention Requirements

A sticky note with the words "retain until" should be placed on the terminated employee's Form I-9, with room to write two dates.

Determine the one-year-after-termination date

All I-9s must be retained for at least one year after termination. The one-year-after-termination date should be written on the sticky note.

Example: If Employee A terminates on Feb. 9, 2021, then the one-year-after-termination date for Employee A is 2/9/22.

Determine three-years-after-hire date

All I-9 forms must also be retained for at least three years after date of hire. Therefore, the second date to write on the sticky note is the three-years-after-hire date (the employee's hire date should be on the Form I-9 in the certification section).

Example: If Employee A was hired on May 14, 2019, then the three-year-after-hire date to write on the sticky note is 5/14/22.

Establish the latest retention date

Next, employers can circle the date that is later (or cross off the earlier date).

Example: Employee A's Form I-9 retention dates are:

• 2/9/22 (one year after termination).
• 5/14/22 (three years after hire).

Given that May 14, 2022, is later than Feb. 9, 2022, employers would circle 5/14/22. This I-9 cannot be shredded until after 5/14/22. The sticky note should read "Retain until 5/14/22."

Shortcut for those employed more than three years

Because all current employees must have a Form I-9 on file, the three-years-after-hire retention requirement is already met for any employee who has been employed with the organization for three years. Therefore, I-9s for all employees who terminate after three years of employment are simply retained for one year after termination. For those employed for less than three years, the above calculations would be made to ensure the employer has the Form I-9 in its possession for a minimum of three years from the date of hire.

Step 6: Organize Terminated Employees' I-9s Chronologically by Retention Date

These I-9s should be moved to the back of the Form I-9 file or binder, or to the file where other terminated I-9s are stored. It may be most convenient to file terminated employees' I-9s chronologically according to their circled retention date.

Step 7: Shred Terminated Employees' I-9s Past Retention Date

Employers should check the first few terminated I-9s in the section outlined in Step 6 to see if any retention dates have passed. If so, those I-9s can be pulled and shredded. Although not required, some employers will keep a record of the I-9 shred date either in a master spreadsheet or in the former employee's personnel file. 

Related Resource:

USCIS: Retaining Form I-9