I-9 Compliance: To Copy or Not to Copy?

Federal regulations do not require employers to keep copies of identity and employment authorization documents, but it is considered best practice. If employers make copies, they should be kept with the employee’s Form I-9 and presented in the event of a government inspection. 

E-Verify exceptions: However, if an employer participates in E-Verify, List A documents (those that prove both identity and employment eligibility) must be copied and maintained. Specifically, if an employee presents a document that triggers photo matching requirements — a U.S. passport, permanent resident card (“green card”), or employment authorization document — the employer must retain a photocopy of the document presented.

Furthermore, if an E-Verify employer wishes to utilize the alternative virtual (remote) method to remotely examine the employee’s Form I-9 documentation (Section 2 or Supplement B), they must retain clear and legible copies of the front and back (if two-sided) of ALL Form I-9 documentation an employee presents remotely with the employee’s Form I-9.

Why copy? Maintaining supporting documents can demonstrate an employer’s good faith during an Immigration and Customs Enforcement (ICE) audit. If the employer is found to have hired an unauthorized worker, retaining copies of employment authorization documents may help establish that the employer reasonably believed the individual was authorized to work in the U.S. 

Keeping copies of these records may also mitigate monetary penalties for common paperwork errors. If errors are found on an I-9 but copies are retained, ICE will consider the violation to be technical, as opposed to substantive, and will afford the employer 10 days to make the correction. 

Additionally, maintaining documentation for all new hires can streamline internal audits and serve as valuable evidence in the event of a discrimination claim.

Consistency: If the employer chooses to make copies of documents, copies must be made and retained for all employees, regardless of the employee’s national origin or citizenship status, to avoid violating anti-discrimination laws. However, employers may change their business processes over time. For example, a company that had not made copies can choose to begin to adopt this process. In this case, the copy policy should be forward facing. Do not request copies from previously hired employees. Furthermore, if a company decides to no longer retain copies, the new policy should also be forward facing. Do NOT destroy existing copies.  

If you choose to copy or scan documents an employee presents when completing Form I-9, you must retain the copies (or electronic images) with their Form I-9 or their employee record. 

Do I need to complete the Form I-9 if I copy? Yes. Making copies of an employee’s documents does not take the place of completing Form I-9. Even if you retain copies of documents, you are still required to fully complete and retain Form I-9. If you choose to retain copies of an employee’s documents for reasons unrelated to E-Verify requirements, you must do so for all employees, regardless of actual or perceived national origin, citizenship, or immigration status, or you may violate anti-discrimination laws.