Stay Error-Free When Disposing of Old I-9s

 

Allen Smith, J.D. By Allen Smith, J.D. November 2, 2018
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​Employers are not required to get rid of old I-9 Forms, but experts say they should when it's allowed, because that way employers limit their exposure to lawsuits and allegations of wrongdoing.

Too often employers hang on to the forms for too long, immigration attorneys say. Or companies destroy old forms too soon, misapplying a U.S. Citizenship and Immigration Services (USCIS) rule on when Form I-9s may be removed.

Former employees' I-9s should be removed only if the forms are older than three years from the date of hire or one year from the date of termination, whichever date is later, according to USCIS. For example, if an employee was hired in 2008 and was fired or resigned in 2009, then the form should be destroyed in 2011 because that's three years after hire and later than one year after termination. If an employee was hired in 1999 and was fired or resigned in 2009, then the form should be destroyed in 2010 because that's later than three years after hire.

[SHRM members-only how-to guide: How to Retain and File I-9 Forms]

Tips for Destroying I-9s

Some employers mistakenly destroy I-9s for current employees, said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan. Some have mistakenly destroyed I-9s one year after termination no matter what.

I-9s should be organized so removal can happen correctly and efficiently. One way to do this is to mark the end of the retention period on the face of the I-9 at the time of termination and file the forms in a "termination binder," a notebook of former employees' I-9 records, in reverse chronological order by date the I-9 can be purged, said Mary Pivec, an attorney with Pivec Law in Woodbridge, Va.

Employers that don't do this often miss I-9s that could have been removed, said Andrew Greenfield, an attorney with Fragomen in Washington, D.C.

William Johnson, an attorney with Kramer Levin in New York City, recommended that small employers keep three I-9 binders: one for employees who need to be reverified, one for employees who do not need to be reverified and one for former employees.

For ease of administration, a company might adopt a policy of destroying I-9s only three years after termination to avoid errors that could occur with short-term employees. A mistake could easily be made in companies with high turnover if there isn't a three-year policy, said David Grunblatt, an attorney with Proskauer in Newark, N.J.

Don't keep I-9s in the same location as other personnel records. "By storing I-9 records in the same place as other personnel records, employers run the risk of mistakenly destroying [other records] or providing the government with more than the I-9 records" if Homeland Security Investigations or another agency conducts an onsite audit, Greenfield said.

Employers might choose to keep a list of I-9 records that have been destroyed. By keeping such a roster, the employer could quickly determine if an I-9 for a given employee is missing because it was destroyed or because it was never completed.  

An I-9 destruction record should include an employee's name; identification number; date of hire; date of termination; date the I-9 should be destroyed; date the I-9 was destroyed; and the name, title and signature of the staffer who destroyed it, according to Mdivani.

For a dispersed workforce, I-9s might not be in a central location, and the removal process may be decentralized. That makes the destruction of I-9s more complicated. Greenfield recommended that employers centralize their I-9 program nationally.

Destroy expired I-9s as often as possible—presumably daily for electronic systems, he said.

Some employers destroy old paper I-9s quarterly or monthly. But Pivec said that frequency is "not a good control method." It's too likely that I-9s will not be destroyed in a timely manner.

Also, have a yearly review of the electronic database or paper files to determine if there are I-9s that should have been destroyed but were missed, stated Amanda Carrano Franklin, an attorney with Moore & Van Allen in Charlotte, N.C.

Why Bother?

"Old I-9s are nothing but trouble," Mdivani said, noting that sometimes they have errors, "most of which cannot be corrected, as the employees are gone."

Old I-9s will expose an employer to increased potential liability in the event of an audit by the federal government. True, Homeland Security Investigations (HSI) might be persuaded to drop a fine for I-9 Forms outside the retention period if the forms were inadvertently submitted in response to a notice of inspection, noted Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla. But that takes added effort by the employer. Plus, old forms might show patterns of discrimination or hiring of unauthorized workers that could raise concerns about the company's overall compliance, she said.

If a company keeps orderly I-9s and correctly destroys them, it's easier to respond to an audit, Johnson stated.

"You don't want to go through mountains of paperwork in the event of an HSI audit, which only allows up to 72 hours for submission of the I-9 Forms," Borovska said.

"Also, with the increased scrutiny around the safekeeping of personal data, it is generally a good idea" to destroy old I-9s as soon as possible, Johnson added.

Exceptions

Mdivani advises against destroying any I-9s if an employer is under an I-9-related investigation by Immigration and Customs Enforcement (ICE), the Department of Justice or the Department of Labor.

In addition, she said, employers shouldn't destroy I-9s before an internal audit is completed in case there are potential identity fraud issues that need to be investigated.

Removing the I-9s of employees terminated by order of ICE for fake documents can result in the rehire of those individuals who present the same fake documents used in the removed I-9, Pivec cautioned. In such circumstances, she recommended that an employer retain the I-9s to guard against future rehire based on the same suspect documents.

Seasonal employers also should retain I-9s to identify potential identity fraud incidents and maximize availability to rehire, she said.

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