Ask Our Experts: Form I-9

Author: Taylor Lewellyn, Brightmine Legal Editor

green-button-answer-keyboard.jpg

With the renewed focus on Form I-9 compliance and the expected surge in audits and enforcement under the new Trump administration, now seems like the perfect time to revisit two questions we received through the Ask Our Experts service related to I-9 retention.

How Should We Retain an I-9?

Q: Are we required to keep hard copies of the form I-9? What is the best practice, and is there any reason why keeping the hard copy would be beneficial? Alternatively, can we keep scanned copies of Forms I-9 without keeping the paper copy?

A: An employer is not required to keep hard copies of the Form I-9 and may electronically store scanned copies without keeping the paper copy. Specifically, an employer may retain Form I-9 on paper, microfilm or microfiche or electronically.

An employer may retain Form I-9 using either a paper or electronic system, or a combination of both. If an employer completes a paper Form I-9, it may scan and upload the original signed form, correction or update, and retain it electronically. The employer may destroy the original paper form after it has securely stored it in an electronic format. Any electronic system used to generate Form I-9 or retain completed Forms I-9 must meet specific requirements.

If an employer chooses to complete or retain Form I-9 electronically, it must maintain (and make available upon request) documentation of the business processes that:

  • Create or generate the retained Form I-9;
  • Modify and maintain the retained Form I-9; and
  • Establish the authenticity and integrity of the forms, such as audit trails.

Additionally, if an employer retains Form I-9 electronically, it must implement an effective records security program that ensures:

  • Only authorized personnel have access to electronic records;
  • The employer has a backup plan for recovering records to protect against information loss;
  • Authorized personnel are trained to minimize the risk of wrongfully or accidentally altering or erasing electronic records; and
  • The system creates a secure and permanent record when an individual creates, completes, updates, modifies, alters, or corrects an electronic file.

If an employer completes Form I-9 electronically using an electronic signature, the system for capturing electronic signatures must meet additional requirements.

While both physical and electronic retention of the Form I-9 are acceptable, for employers using the alternative procedure for remote document examination, an electronic system is recommended, given the remote nature of the process and the relative ease in maintaining documents, as compared with hard-copy printouts.

Can We Delete an Original I-9?

Q: We received an employee's updated Employment Authorization Card, completed Supplement B, Reverification and Rehire, of their Form I-9 and uploaded the files into our system. Can we delete the original Form I-9 because we saved an updated version?

A: Do NOT delete the original Form I-9.

When reverifying an employee, such as when an employee's work authorization expires, an employer completes one block of Supplement B, Reverification and Rehire (formerly Section 3) and attaches it to the employee's original Form I-9. An employer may use additional blocks on this supplement for subsequent reverifications or updates, attaching additional supplement sheets as needed.  If the employee's previous update or reverification was completed on a Form I-9 version that is no longer valid, the employer must also complete Supplement B, Reverification and Rehire and attach it to the employee's original Form I-9.  Supplement B is retained with the original Form I-9.

Forms I-9 must be retained throughout the period of employment. As the USCIS states, "Never dispose of a current employee's Form I-9 and any copies (or electronic images) you made of the employee's Form I-9 documentation; you must keep these records for as long as the employee works for you, and for a certain amount of time after they stop working for you." Specifically, after an employee's termination, the Form I-9 must be retained for either three years after the date of hire or one year after the date of termination, whichever is later.

If an employer uses an electronic Form I-9 management and storage system, we recommend contacting the vendor regarding its specific processes and workflows for reverifying and storing reverified Forms I-9.

Please note that if an employer's action or inaction results in an electronic I-9 record being altered, lost or erased, and it knew, or should have known, that the action or inaction could have that e?ect, it may be found in violation of the Immigration and Nationality Act (INA).

Ask Our Experts Is Here to Help

Employers will continue to have other questions surrounding Form I-9, E-Verify, employment authorization and worker visas as policies evolve under the newest presidential administration. Fortunately, we at Ask Our Experts are happy to help and eagerly await your queries.