How Long Should Employers Keep Form I-9s?
Determining how long to keep Form I-9s can be a confusing and daunting task because the actual purge date varies based on how long an employee had been employed. The timing for purging Form I-9s only begins after an employee has separated employment. As such, employers often fail to shred old Forms I-9 that are beyond the retention requirement, even though this can lead to compliance liability. According to federal guidelines, I-9s must be retained either one year after the date of termination or three years after the date of hire, whichever is later. However, Florida retention schedules require that the forms be retained for a much longer period of time, in some instances as long as 50 years after the employee has separated employment.
What Action Should Employers Take to be Prepared for Inspection?
Employers should conduct regular audits of their Form I-9s to ensure it is retaining only the forms that are needed and to ensure all required associated documents are also retained. Regular audits also reduce the error rate which may reduce penalties assessed by (ICE).
When ICE wishes to inspect your organization’s Form I-9s, it provides 3 days for employers to produce the Form I-9s and associated documents. If a request is received, employers should only give the U.S. Immigration and Customs Enforcement (ICE) access the to the Form I-9s and associated documents. An Notice of Inspection should not provide ICE with the opportunity to question employees on the premises about their right to be in the United States or permission to review other personnel records.
Before ICE inspects the forms and associated documents, employers should review the forms to ensure that each form complies with the Immigration and Nationality Act (INA). Specifically, employers should ensure that:
- Section 1 is completed at time of hire;
- Verification documents are provided no later than the 3rd business day from date of hire;
- Receipts which evidence current work authorization are being accepted and placed in the re-verification docket system;
- Employer completed Section 2 within 3 business days of date of hire;
- Employees are not required to produce specific documents or more documents than the law requires;
- The I-9 forms are retained for the entire requisite period of time; and
- An adequate docketing/ tracking system is in place to endure that employees whose work authorization will expire are re-verified.
During this review employers should create a list of employees that fall withing the time frame on the Notice of Inspection and prepare a list of those employees. The list should include the employee’s hire date and termination or separation date, if applicable. Employers may wish to separate these employee records from the rest of the Form I-9s for a smoother inspection.
Employers who discover errors while completing their review should correct those errors immediately.
How Should Employers Manage Form I-9s Processed by a Third Party Vendor?
Although some employers may use a third party vendor to process and retain their Form I-9’s, these employers should not falsely believe they cannot be held accountable for errors found during an inspection, including compliance with retention rules. Employers should communicate its retention expectations with the vendor and conduct regular audits of the information collected and stored by the third party vendor.
How Should Employers Destroy Old Form I-9s?
Employers should use a secure document destruction protocol or vendor to reduce the risk of release of the confidential and sensitive information provided on Form I-9s. For forms stored electronically, employers should consider using a secure data wipe process that prevents information from later being recovered or retrieved.
How Can MDM Legal Help?
MDM Legal has a working knowledge of the federal and state requirements for the retention of Form I-9s. If your organization has questions about its collection and retention process, give us a call!
