Employees are required to present original documents that demonstrate their identity and employment authorization within three business days of the date the employee begins employment. Copies of the identifying documents is insufficient for compliance. Upon presentation, an employer is required to examine the original documents to determine if they reasonably appear to be genuine and relates to the person presenting it. Many, likely most employers make copies of or scan the documents and keep them with employees’ I-9s. Some employers choose not to fill out Section 2 of the I-9 form, which is where they list the identity and authorization documents presented and instead will simply staple copies of the documents to the incomplete I-9 form. This practice is not legally compliant and creates liability during an agency audit. Making photocopies of the documents does not take the place of completing Form I-9. Moreover, I-9 forms and the accompanying documents or files can become voluminous with copies of social security cards, drivers’ licenses, passports, etc. Employers should reconsider making copies of the I-9 employment authorization and identity documents going forward.
While an employer must keep I-9 forms for the time period required by law, employers are not required to keep copies of documentation received from the employee that demonstrates the employee’s identity and authorization to work in the United States. However, if an employer decides to retain copies of an employee’s documents, the employer must do so for all employees, regardless of actual or perceived national origin or citizenship status, or the employer runs the risk of violating anti- discrimination laws.
If copies or electronic images of the employee’s documents are made, the documents must either be retained with the corresponding Form I-9 or stored with the employee’s records in accordance with the standards for electronic records retention as specified in the applicable regulations (8 C.F.R. § 274a.2). It also should be noted that while an employer is not required to retain these employee documents, should documents be retained they must be made available when a federal government agency conducts an inspection or audit.
Employers must keep all copies of the documents that employees provide to establish identity and authorization to work that have been collected. Employers should consider storing all I-9 forms and related documents that it collects separately from the standard personnel file to limit agency access during an audit. Moreover, employers may elect to stop the practice of collecting copies of documents that establish identity or work authorization going forward, but a change in such practice will need to be uniformly applied to all new hires. If an employer has previously retained the backup documentation, all such documents must be kept. However, if an employer changes its practice of keeping copies or scans of the documents provided by employees, then the employer should write a (signed and dated) memo to include in the I-9 files as to when and why you made the change. Keep in mind, of course, that the “why” can’t be an impermissible or illegal reason.