Retaining Form I-9

Employers are required to retain the page of the form on which the employer and the employee enter data. While some employers keep copies of the ID documents provided for verification of status, it is not a requirement to keep/store copies of these documents.

 It is important for employers to understand that Form I-9 must be kept on record for a period of at least 3 years, even if the employee only worked for a few weeks. If the employee stays with the company longer than 3 years, then the employer must keep the Form I-9 with their records for as long as the employee is employed with the company (even when longer than three years).

In some circumstances, the employer must make sure to have the Form I-9 updated in order to stay in compliance with USCIS regulations. These situations occur when the employee has an expiration date on their work authorization when they initially fill out the Form I-9. For example, an H1-B worker may have work authorization and must have Form I-9 on file with his employer; however, the H1-B visa is typically issued for an initial period of only 3 years. After the 3 years, the worker’s visa must be renewed in order for the work authorization to remain valid. At this point, once the expiration date has passed, the employer must request an updated evidence of work authorization permitting the worker to continue to lawfully work in the United States.

While every system is different one suggestion to keep track of ALL Form I-9 applications and their validity is to do an annual audits of the forms. During the review, those forms that have an expiration date on the work authorization in the upcoming year can be noted and the employee can be notified of when he needs to provide an updated proof of work authorization. This will also allow the employer to treat all employees equally and not single out non-citizens. Another way to track the specific dates of expiration is to keep track of them as deadlines in the HR calendar – that way the HR personnel will know when they will need to have an updated work authorization document, which will result in a more efficient renewal process.

Any and all changes to the documents must be documented and kept with the Form I-9.

If copies of documents presented by employees are made, those too should be kept with the Form I-9. (Employers may store the instructions and List of Acceptable Documents page as well.)

It is important to not only retain Form I-9 but to do regular (i.e. annual) self-audits of the Form I-9 of every employee to make sure that there is always a correctly completed form on file for each person. In the event that an error needs to be corrected, the employer and employee CROSS OUT (do not white-out or erase) the error, make the change on the form so that the change can be seen and initial the change with the date.  If it is not possible to cross out the information that needs to be changed, a separate Form I-9 must be completed and attached to the incorrect Form I-9 with a signed explanation by both the employer and employee. This new form must not be backdated and should reflect the date of the change.

If the employer fails to adequately review the company files and fails to request proof of an updated work authorization and note it in the files, the employer must immediately request and obtain a copy of the updated documents and make note on the file of the request (a signed statement by both parties and update to the file reflecting the extended work authorization date). If the USCIS audits the company during this period, the employer could face fines for failing to keep an updated record for the Form I-9.  Simply put, make sure that Form I-9 is updated for every employee who does not have an indefinite work authorization (i.e. Green Card holders, non-immigrant workers etc.).

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