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Storing Form I-9 Q&As

Q.  Are employers required to retain original Forms I-9 with original handwritten signatures or are photocopies acceptable?

     A.  If the employer completes and retains Form I-9 in paper format only, he or she must retain the original Form I-9 with the original handwritten signatures for three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later. Photocopies of the completed Form I-9 are not acceptable.

Q.  Bank Secrecy Act regulations require my company to retain Forms I-9 and supporting documentation for a minimum of five years, irrespective of the retention requirements under IRCA. How do I also fulfill Form I-9 requirements?

     A.  You should ensure that you comply with Bank Secrecy Act regulations, as necessary, as well as Form I-9 requirements. Therefore, if an employee’s Form I-9 is a supporting document in a suspicious activity report, it may be retained as required by the Bank Secrecy Act. You also must ensure that you comply with Form I-9 statutory and regulatory requirements by retaining a copy of the employee’s Form I-9 for three years after the date of hire or one year after the date employment is terminated, whichever is later, and making the form available to officers for inspection upon request.

Q.  My business would like to end its practice of keeping copies of documentation for all employees. How should we implement this change? Should we shred all previously kept copies?

     A.  Form I-9 regulations allow employers to choose whether or not to keep copies of documentation employees submit to complete Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documentation at any time, as long as you do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.

You should not shred previously retained copies of documents. DHS regulations provide that once copies of documents are made, they must be retained with the Forms I-9.

Q.  Has there been a change in the regulations concerning keeping photocopies of the documents employees present to demonstrate employment authorization?

     A.  The employment eligibility verification and employer sanctions provisions in the Immigration and Nationality Act (INA) have always provided that employers may choose to make copies of documents, stating, “notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection …” (INA section 274A(b)(4), 8 USC §1324a(b)(4)). However, once an employer photocopies a document an employee presents, the employer must retain the photocopy with Form I-9 or store it with the employee’s records. See 8 CFR 274a.2(b)(3). The option to store copies with the employee’s records is a relatively new option added to the regulations in 2010. See 75 Fed. Reg. 42575-01 (July 22, 2010).

Q.  If a natural disaster or any other unforeseen occurrence destroys a company’s stored Forms I-9, what should the company do?

     A.  Employers whose Forms I-9 are missing and/or destroyed as a result of a natural disaster should complete new Forms I-9 to the extent reasonably possible for those employees and attach a memo stating the reason they were redone.

Last Reviewed/Updated: 01/12/2012