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 The ABC’s Of Employer Compliance: I-9 Recordkeeping and Reverification




What are the Form I-9 re-verification requirements?


If an employee is not a U.S. citizen or lawful permanent resident, they are likely working based on a status with a defined end date. For these employees, the employer must note the expiration of their documents on the I-9 Form and then must pull their I-9 Form before the expiration date and re-verify that the employee’s status has been extended. Employers need to establish a reliable tickler systems to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.  



What if the re-verification section of the form has been filled out from a prior re-verification? 


In this case, an employer can complete a new Form I-9 Section 3. The employer should put the employee’s name in Section 1 and retain the new form with the original.



Can an employee present a Social Security card to show employment authorization at re-verification when they presented an expiring Employment Authorization Document or I-94 at the time of hire?


Yes as long as the Social Security card is not restricted with a statement such as “not valid for employment” or “valid for work only with DHS authorization” (these documents are not valid List C documents). Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. Keep in mind that an employee may have become a permanent resident or otherwise received employment authorized status allowing the employee to obtain a Social Security card absent the sponsorship of the employer so the employer should not assume the employee is really unauthorized.



What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?


If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer must complete Section 3 of the new version of the Form I-9 and only accept documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions.



Do prior employees resuming work with a company need to complete a new Form I-9?


Returning employees often don’t need to fill out a new I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9. Remember that if a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employee will need to complete a new form. And if the form has been filled out in Section 3 from a previous re-verification, the employer can complete Section 3 of a new Form I-9.


In order for an employee to be considered a re-hire, the employer must be rehiring the employee within three years of the initial hiring date of the employee and the employee’s previous grant of work authorization must not have expired. Re-verifying employers must (a) record the rehiring date, (b) write the document title, number and expiration date of any document presented by the employee, (c) sign and date Section 3 and d) if the re-verification is happening on a new Form I-9, the employee’s name is written in Section 1.


If an employee is being updated instead of re-verified, the employee must be rehired within three years of the initial date of hire and the employee is still eligible to work on the same basis as when the original Form I-9 was completed. In other words, simply updating the Form I-9 is permitted when the employee is coming back on the same basis as in the original Form I-9 and re-verification is needed when the basis for work has changed. Updating is done by recording the date of rehire, the employer signs and dates Section 3 and the employee’s name is written in Section 1.


Of course, it may be easier just to do new I-9s and an employer can certainly opt for this.  Note that the rules on returning employees also apply to cases of recruiting or referring an individual.



What if a re-hired employee is re-hired after a new version of the Form I-9 is released?


If the Form I-9 has been modified since the form was filled out on the date of hire, the employer should not complete Section 3 of that form. Instead, the employer should complete Section 3 of the new form, list the employee’s name in Section 1 and have the employee provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.






What are the Form I-9 recordkeeping requirements?


Employers must keep I-9 Forms for all current employees though the forms of certain terminated employees can be destroyed. In the case of an audit from a government agency, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format (see discussion below for more information on this subject).



When can Form I-9 be destroyed?


For terminated employees (the date employment in the U.S. ceased for employees transferred abroad), the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

Employers should figure out two dates when an employee is terminated. The first is the date three years from the date of the employee’s date of hire. The second is the date one year from the termination date. The later date is the date until which the Form I-9 must be retained.


Note that there is a different rule for recruiters or referrers for a fee. Those entities only are required to maintain the Forms I-9 for a three year period from the date of hire regardless of whether the employee has been terminated or not.


In addition to establishing a reminder system to re-verify Forms I-9, employers should also establish a “tickler” system to destroy forms no longer required to be retained.



Should recordkeeping be centralized at a company?


Keeping records in one location is generally advisable because it makes it easier to conduct internal audits to ensure the employer is complying with IRCA’s rules and also to more easily prepare for a government inspection since having the forms at one location will allow more time for review.


The forms themselves can be kept onsite or at an offsite storage facility as long as the employer is able to produce the documentation within three days of an audit request from a federal agency.



Does an employer need to keep copies of the documents presented by the employee?


No. Retaining copies of the supporting documents is voluntary. Employers can retain copies of documents and must keep the copies with the specific Form   I-9. While some would argue that maintaining copies of documents leaves an unnecessary paper trail for government inspectors, it is also true that maintaining documentation could provide a good faith defense for an employer in showing that it had reason to believe an employee was authorized even if the paperwork was not properly completed. IRCA compliance officers may also be suspicious of employers that don’t keep copies of documents. It is also easier for an employer to conduct internal audits to ensure compliance when they can see what documents were actually provided to the human resource representative responsible for completion of the Form I-9. Whatever a company decides, however, it is important that the policy be consistently applied and it is important to remember that simply having copies of the documents does not relieve the employer of responsibility for fully completing Section 2 of the Form I-9. Also, consistency is important. Keep all the documents or keep none of them since keeping copies only for certain employees could open the employer up to charges of discrimination.



Can Form I-9 be completed on paper be stored in another format?


Yes. In addition to paper, Forms I-9 may be retained in an electronic, microfilm or microfiche format.


DHS suggests the following with respect to microfilm or microfiche:


  • use film stock that will last the entire retention period (which could be 20+ years for some businesses)

  • use equipment that allows for a high degree of readability and can be copied on to paper

  • for microfilms, place the index at the beginning or end of the series and for microfiche, place the indexes on the last microfiche.


Forms I-9 can also be retained in an electronic format (we’ll cover the electronic I-9 process in the next ABC’s of Immigration segment).



Should the Form I-9 records be kept with the personnel records?


This is generally a bad idea. First, it could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9. Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, something that could cost valuable time as the employer prepares for the government inspection. Keeping the Forms I-9 separate will also make it easier to conduct internal audits to ensure compliance with IRCA and to re-verify forms as needed.




Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

Siskind Susser
1028 Oakhaven Rd.
Memphis, TN 38119
T. 800-343-4890 or 901-682-6455
F. 901-682-6394

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