I-9 Retention: How and What to Keep

Employers must retain original I-9 forms for three years after the date of hire, or one year after the date employment ends, whichever is later. The forms should be stored separately from other personnel files. Further, employers should have a “tickler” system to re-verify all employees who present work authorization that bears an expiration date and to accurately dispose of old forms. Many variations have been suggested to keep the forms separate. One of the most common is the use of three separate notebook binders: one for current employees for whom re-verification will not be necessary, another for employees requiring re-verification and a third for terminated employees.

Form I-9 can be electronically generated and retained provided that:

• The resulting form is legible.
• No change is made to the name, content or sequence of the data elements and instructions.
• No additional elements or language is inserted.
• The employee receives Form I-9 instructions.
• The standards specified in the regulations are met.

Employers may complete or retain I-9 forms in an electronic generation or storage system for as long as the system has reasonable controls to ensure integrity, accuracy and reliability of the data. The system should be designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of electronically completed or stored forms. In addition, an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored I-9 forms, including any electronic signatures, and a retrieval system with an indexing system that permits searches by any data element is necessary. The system must be able to reproduce legible paper copies.

U.S. Citizenship and Immigration Services allows electronic signatures if the employer wishes to complete I-9 forms electronically. The system must:

• Affix the electronic signature at the time of the transaction.
• Create and preserve a record verifying the identity of the person providing the signature.
• Provide a printed confirmation of the transaction at the time of the transaction to the person providing the signature.

One potential drawback of using electronic signatures: If an employer is unable to comply with the standards for capturing signatures electronically, U.S. Immigration and Customs Enforcement officials will determine that it has not properly completed the forms.

The author is an attorney with Duane Morris in Miami and chairs the firm’s South Region Immigration Practice.