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► What Form I-9 Documentation Must Employers Keep?

Most employers know that they must complete a Form I-9 for each new employee within 3 business days of the individual's start date.

The I-9 has two sections that need to be filled out separately by the employee and the employer. Section 1 contains general information about the employee, such as his date of birth, address, and whether he's a citizen of the United States. Section 2, which must be completed by the employer or its authorized representative, seeks information about the employee's identity and authorization to work in the United States.

When completing that section 2, you are required to review documentation provided by the employee, and you often must make copies of those documents. But do you really have to do that?

What the Law Requires of Employers that Don't Use E-Verify

Employees are required to present original documents (not copies) that demonstrate their identity and authorization to be employed in the United States. An employer uses the information to complete Section 2 of the I-9.

You are required to examine the original documents to determine if they reasonably appear genuine and relate to the person presenting them. Some, if not most, employers make copies of or scan the documents and keep them with their employees' I-9s.

I-9 files can become voluminous, filled with copies of Social Security cards, driver's licenses, passports, and other acceptable documentation. If you're making an effort to reduce your carbon footprint, you may want to reconsider making copies of new employees' I-9 employment authorization and identity documents going forward.

Employers Often Keep More Than They Need

Although employers must keep I-9 forms for the length of time required by law, employers that don't use E-Verify don't have to keep copies of employees' documentation demonstrating their identity and authorization to work in the United States.

However, if you choose to retain copies of an employee's documents, you must do so for all employees, regardless of their actual or perceived national origin or citizenship status, or you run the risk of violating antidiscrimination laws.

If you choose to make paper or electronic copies of employees' documents, the copies must either be retained with the corresponding I-9s or stored with employee records in accordance with the standards for electronic records retention specified in the applicable regulations. Further, if you retain copies of employees' documents, you must make them available when the U.S. Department of Homeland Security (DHS) or another federal agency conducts an inspection or audit.

Employers that use E-Verify are required to retain copies of certain documents, such as U.S. passports or passport cards, permanent resident cards, and Form I-766 (Employment Authorization Document).

Keeping the Copies Doesn't Remedy Errors on the I-9

Some employers fail to complete Section 2 of the I-9, which is where the identity and authorization documents presented by the employee are listed, and simply staple copies of the documents to the incomplete I-9, which isn't a legally compliant practice.

Making photocopies of the documents doesn't take the place of completing the form. Even if you choose to retain copies of the employee's documents, you must still complete Section 2 of the I-9.

Changing Your Retention Practices

If you aren't using E-Verify and you've been keeping copies of the documents employees show you to establish their identity and authorization to work, you can stop doing so going forward if you want to save paper, storage space, and time.

However, you must keep the backup documentation for employees you've already collected it from—don't throw it away! If you decide to change your practice of keeping copies or scans of the documents new employees give you, write a signed and dated memo for your I-9 file detailing when and why you made the change. Keep in mind, of course, that the "why" can't be an impermissible or illegal reason.

By Marylou Fabbo. Ms Fabbo is an attorney and partner at the firm of Skoler, Abbott & Presser, P.C., and an editor of Massachusetts Employment Law Letter.

[12/2018]

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