Employers across the United States will be required to use the newest version of the Form I-9 to verify the employment eligibility of their workforce by Sept. 18. The changes to the form are few, and primarily relate to the List of Acceptable Documents. The retention and storage requirements remain the same, however.
Employers must retain each employee's completed Form I-9 for as long as the worker is on the payroll. Once an employee no longer works for the organization, HR must determine how long to retain and store the form: either three years after the date of hire or one year after the termination date, whichever is later.
Forms can be retained on paper or microform, or electronically.
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Storing the Form I-9
Employers should consider the security of the employee's personal information when determining how to retain and store completed Forms I-9 and any corresponding documentation.
Forms can be stored either onsite or at an offsite storage facility but must be presentable to government officials for inspection within three business days of the date when the forms were requested.
"Given that U.S. Citizenship and Immigration Services (USCIS) has added some additional layers of information onto the updated Form I-9, accompanying the forms with copies of the [worker's identity documents] can be very helpful in the event of a government inspection or internal audit," said Ann Cun, founder and managing attorney of Accel Visa Attorneys, an immigration law firm in San Leandro, Calif. "I would recommend it but certainly understand if employers are reluctant if they are bound by limited resources. The key isn't whether or not to store additional identity documents, but whether that decision was applied equally for all employees moving forward once the decision was made."
Cun said paper Forms I-9 should be stored separately from personnel documents and kept in a secure space. "Keep the forms in a locked drawer and make sure only authorized personnel have the key to the drawer."
Setting up Important Alerts
Employers should have a "tickler" system to remind themselves to reverify employees who present work authorization that bears an expiration date and to accurately dispose of old forms. "A tickler system of some kind is critical for employers who have employees indicating that their work authorization has an expiration date," said Sari Long, an attorney with Faegre Baker Daniels, based in Washington, D.C. If employees indicate in Section 1 "that they are an 'alien authorized to work until' and they enter in an expiration date, the employer needs to be sure to track the expiration date of the related work authorization documents. This includes employment authorization cards, I-94 records and foreign passports."
It's good practice to have a system in place that alerts the employer 90 days in advance of expiring documents, she added. "Following up 60 and 30 days before the expiration date will ensure that the employee is given every opportunity to take necessary steps to extend [his or her] work authorization and obtain the necessary documents to be reverified."
Long said that, depending on the company size and HR sophistication, the alert system can be set up using Microsoft Outlook reminders, spreadsheets or the built-in reminders on many electronic HR systems.
Employers should have a separate process for the I-9s of terminated employees. "Once an employee is terminated, HR can either enter the date the I-9 should be destroyed on the existing tickler system for reverifying expiring work authorization, or can separate the I-9 into a termed area, and order by destruction date," Long said. HR should regularly review the I-9s of terminated employees and destroy them accordingly, she added.
Storing Electronic I-9s
The requirements for generating and storing I-9s in an electronic format are far more complex than most employers realize, said John Fay, vice president and general counsel at the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services. "There are several regulatory and practice-oriented factors to consider, including specific record-keeping, security and integrity standards designed to ensure the trustworthiness of the employer's I-9 compliance system."
That's why USCIS has been stressing to employers that the new "smart I-9" is not an electronic I-9. "There's a lot more involved if you're going entirely paperless," Fay said.
Requirements for using an electronic storage system include:
- Controls to ensure the integrity, accuracy and reliability of the system.
- Controls to detect and prevent the unauthorized or accidental creation, alteration or deletion of stored Forms I-9, including the electronic signature, if used.
- An inspection and quality assurance program that regularly evaluates the system.
- Controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by inspectors.
The audit trail is one of the most critical requirements, Fay said. "The regulations require that whenever an electronic I-9 is created, completed, updated, modified, altered or corrected, an electronic I-9 system must create a secure and permanent record that establishes the date accessed, who accessed it and what action was taken. It's the ultimate investigative tool for Immigration and Customs Enforcement, which means it should be the No. 1 issue for employers when evaluating an electronic I-9 system."
Security is another key aspect in storing electronic I-9s. "Under the regulations, employers must utilize a secure I-9 system that limits access to authorized personnel, provides a backup for recovery of records and ensures that employees are trained to minimize the risk of altering data," Fay said. A breach of security can expose employers to private actions by employees and potential issues during a government I-9 inspection, he added.
When officials arrive to inspect an employer's electronic Forms I-9, the employer must retrieve and reproduce the electronically stored forms as well as provide officers with the necessary hardware and software to inspect electronic documents.
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