With every new employee comes a new Form I-9 that needs to be completed and retained, and employment verification documents that need to be inspected. The verification documents most typically produced by new employees will be a U.S. passport, Form I-94 with a foreign passport, green card, or driver’s license and social security card. But after you inspect the verification documents and confirm they are genuine, what's next? Should you make and retain a copy of them before they are handed back to your employee? The answer is that it’s up to you.
While employers must keep the completed Form I-9s for the required statutory period (3 years from the date of hire or 1 year after termination, whichever is longer), they are allowed to choose whether or not they want to retain copies of the employment verification documents presented by their employees, with certain caveats (yes, there is a catch).
Caveat 1: You need to be consistent. So if copies of the employment verification documents are made and retained for one employee, they need to be made and maintained for all employees. Consistency across employees regardless of national origin or citizenship matters for complying with anti-discrimination laws. However, an employer isn’t bound to its decision forever. An employer who historically retained copies of verification documents can decide to switch to no longer retaining them, but once that decision is made it has to apply going forward for all new employees.
Caveat 2: Once a copy is made, you are stuck with it. An employer who retained copies of employment verification documents can’t decide that it is too painful to continue and destroy them all. Once a copy has been made, it needs to be retained with the employee’s Form I-9. For the employer who switches to no longer making copies, it still has to hold on to the copies previously made.
Caveat 3: You don’t have a choice if you use E-Verify. E-Verify is a free service that checks an employee’s information against the records of the Department of Homeland Security and the Social Security Administration and electronically confirms whether an employee is eligible to work in the United States. If you use E-Verify (and some employers must), you have to make and retain a copy of the photo verification document. So who must use E-Verify? Certain federal contractors and other employers are mandated to use it under state law, which currently includes all employers in Arizona, Alabama, Mississippi, South Carolina, Georgia (if more than ten employees) and North Carolina (if 25 or more employees). Some states also mandate that state contractors and/or state licensees use E-Verify.
Caveat 4: You can retain the documents electronically with the right security measures. You can go paperless so long as your electronic storage system meets a number of conditions including, (i) controls to ensure the integrity, security, accuracy and reliability for the documents being stored, including an audit trail for any changes or alterations, (ii) indexed in a manner to allow particular documents to be accessed immediately, and (iii) subject to quality assurance evaluations that regularly evaluate the electronic generation or storage system.
There is no clear “best answer” on whether you should retain copies of the employment verification document that your employee produces. Is copying and retaining documents a burden that you don’t want to deal with? Do you want to use E-Verify? Are you worried about errors in copying the required information from the verification documents onto the Form I-9? Do you have a system that can make a copy, retain the documents in electronic format, and produce them easily if you are audited? Your company’s answers to these types of questions should help you to decide whether or not to keep copies of employees’ Form I-9 verification documents.