Tips for Form I-9 Retention & Storage

Form I-9 is a document that every employee and employer has either filled out or filed at some point in their professional career. The I-9 is a document and thus needs to be filed correctly to maintain compliance, and the overall safety of all employees. Once filed this documentation needs to be stored in a safe, reliable, and accessible location. Read here to learn how you can store your I-9 documentation correctly and remain compliant. 

What is Form I-9?

Form I-9 is an official U.S. Citizenship and Immigration Services (USCIS) document that helps a company verify that its employees are legally permitted to work in the United States. This form must be completed by both employers and employees. The document requires specific forms of identification. Either one document from List A, or one document from both List B and List C. These can include:

• List A constitutes specific documentation verifying both employment authorization and identity. The most common documents associated with List A are a passport or permanent resident card. 
• List B constitutes a document verifying identity. The most common documents for this list include a drivers license, ID card or voter registration card.

• List C constitutes one document verifying employment authorization. The most common documents for List C are social security cards or birth certificates.

Once filed, the forms must be maintained for at least 3 years following the hire date or 1 year following the departure of the employee, whichever comes last. The basic prerequisite for completing the I-9 is to verify that an employee is one of:

• A U.S. citizen
• Non-U.S. citizen national
• Lawful or permanent resident
• Alien who is authorized to work

As of May 1, 2020 a new I-9 Form has been issued along with an updated version of the USCIS handbook. This has offered further clarity involving more complex situations, such as the status of foreign workers, or those serving as an authorized representative tasked with completing the Form for an employer.

Why Storing I-9’s is Important

When completing this form you are required to collect personal information regarding your employees. For this reason it is crucial that you retain Form I-9 documentation and store it correctly.

All I-9 information needs to be stored safely and securely, however it needs to be accessible as there are several entities who may request said forms. The forms may be inspected by officers of the Department of Homeland Security, employees from the Immigrant and Employee Rights Section (IER) at the Department of Justice, as well as employees at the Department of Labor upon request. 

It is recommended that employers store the I-9 either on site or at a secure off-site storage facility. Wherever the documents are to be stored, they need to be accessible. If government officials do request access, then the documents must be able to be presented within 3 days. 

Which Formats May the I-9 be Stored As?

According to the USCIS, I-9 Documentation may be stored in a few different formats. These formats include paper, microfilm or microfiche, and electronic documentation. Each of these formats requires that specific measures be taken in order to securely store said documents.

• Storing Paper Form I-9
  • Those employers storing Form I-9 in a paper format, may store the document with the employees documents and records if they so choose. This being said, USCIS does recommend that employers keep this form separated from other documentation in order to better accommodate any inspection requests. 
  • Choosing paper can prove problematic in multiple ways. Something might physically happen to the document that would deem it unreadable. There is also a greater chance of misplacing or losing said documentation if left in paper form.
• Storing Microfilm or Microfiche I-9
  • Employers are allowed to maintain I-9 documentation on Microfilm or microfiche. Be sure the film used will maintain the integrity of the image and allow clear access to said image for all of the retention period. 
  • Microfilm must be perfectly legible and have high readability when viewed. 
  • Be sure to index all data accordingly so as to allow immediate access upon request.
  • If requested by an officer, the documentation must have a safety feature, be in clean condition, and display a page fully. 
  • Microfilm can be very delicate and just like paper, hold a greater chance of physical damage. To this end, it would most likely prove safer to maintain the documents electronically.
• Storing I-9 Electronically
  • Electronic storage systems must include measures to ensure the overall integrity, accuracy, and reliability of the documentation.
  • Measures must be taken to ensure no unauthorized alterations are made to said documentation. 
  • Make certain that the electronic storage system maintains a clear audit trail. Should any alterations occur, it will be formally documented. 
  • Utilize an inspection and quality assurance program that will allow for the periodic inspection of the storage system and electronically stored forms. 
  • Be sure records are indexed correctly to allow for immediate access and retrieval. 
  • Always be sure to include high degrees of legibility for ease of reading.
  • Electronic Storage is the safest and most secure option for storing this documentation. It allows for software to be utilized as a means of protection, as well as easy access whenever the need arises to revisit the documents.
  • "Employers should use a HRIS, such as BerniePortal, which comes standard with onboarding documents such as the I-9. New employees can upload the required documentation directly into the HRIS via their computer or mobile app. HR can then review and approve or deny the documentation. The completed I-9 is then stored in an online personnel file for review by HR or the employee at any time.

Should I-9 Be Stored Separately?

The USCIS recommends that all From I-9 files should be maintained separately from other personal documentation. Separate storage often offers an extra level of security.  Additionally, separate storage can add an extra safeguard against a potential audit, which is conducted by the U.S. Immigration and Customs Enforcement (ICE). ICE conducts in-person verification audits according to deadlines that are updated each year. 

Are Their Penalties for Improper Form I-9 Storage?

Employers who do not meet or outright ignore specific procedures involving the storage and maintenance of Form I-9 documentation, may in fact risk facing penalties. If protected information is exposed to unauthorized individuals and then utilized as a means of discrimination the victim has the legal right to sue their employer. 

Likewise, the most present risk of litigation relates to how HR stores these documents and where they're stored. The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from discriminating against employees on the basis of national origin or citizenship status—information contained in every Form I-9.