Employers must keep I-9 Forms for all current employees, though the I-9 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.
Retaining copies of the supporting documents is voluntary. Employers can retain copies of documents and, if one does so, the copies must be kept 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. Additionally, if copies are retained and some data is missing in List A, B or C, such as the issuing authority, it is only a technical error, not a substantive one, for which the company will be given 10 days by Immigration and Customs Enforcement (ICE) to fix.
Whatever a company decides, however, it is important that the policy be consistently applied. 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. It is important to remember that simply retaining copies of the documents does not relieve the employer of its responsibility for fully completing Section 2 of the I-9 form.
In Tennessee, a state law requires employers to copy and retain a designated document (such as an unexpired U.S. passport, permanent resident card, EAD, birth certificate, certificate of naturalization, or state-issued driver’s license or identification) unless it utilizes E-Verify. Of course, E-Verify has rules on what documents must be retained.