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10.0 Retaining Form I-9

How Long Must I Keep a Form I-9?

You must keep a completed Form I-9 on file for each employee on your payroll (or otherwise receiving remuneration) who was hired after Nov. 6, 1986 (or on or after Nov. 27, 2009, if employed in the CNMI). Never dispose of a current employee’s Form I-9 and any copies (or electronic images) you made of the employee’s Form I-9 documentation; you must keep these records for as long as the employee works for you, and for a certain amount of time after they stop working for you. This requirement applies even if the employee ends employment shortly after the date of hire.

Never mail Form I-9 to USCIS or U.S. Immigration and Customs Enforcement.

Only when an employee stops working for you should you calculate how much longer you must keep their Form I-9. Federal regulations state you must retain a Form I-9 for each person you hire for three years after the date of hire, or one year after the date employment ends, whichever is later.
To calculate how long to keep a former employee’s Form I-9:

  • If they worked for less than two years, retain their form for three years after the date you entered in the First Day of Employment field.
  • If they worked for more than two years, retain their form for one year after the date they stop working for you.

You can retain Form I-9 on paper, microfilm or microfiche, or electronically. You only need to retain pages that you and your employee wrote information on: You do not need to keep the Lists of Acceptable Documents on page 2, the instructions or blank supplement pages.  

Insufficient or incomplete documentation is a violation of section 274A (a)(1)(B) of the INA (8 CFR Part 274a .2(f)(2)).

Retaining Paper Form I-9

You may retain completed paper forms with original handwritten signatures on-site or at an off-site storage facility for the required retention period, as long as you are able to present Forms I-9 within three business days of an inspection request from DHS, the Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), or U.S. Department of Labor (DOL) officers.

Retaining Form I-9 on Microfilm and Microfiche

You may retain copies of completed paper forms with original handwritten signatures on microfilm or microfiche. When using microfilm or microfiche, you should:

  • Select film stock that will preserve the image and allow its access and use for the entire retention period, which could be more than 20 years, depending on the employee and your business;
  • Use well-maintained equipment to create and view clear, readable Forms I-9 and reproduce legible paper copies for officials who inspect your forms;
  • Place indexes either in the first frames of the first roll of film or in the last frames of the last roll of film of a series. For microfiche, place them in the last frames of the last jacket of a series.

10.1 Form I-9 and Storage Systems

Create Your Own Form I-9

USCIS offers a Form I-9 that can be completed on a computer but does not have full electronic capabilities. You may create your own electronic Form I-9 if you:

  • Provide employees instructions for completing the form;
  • Create a legible form;
  • Do not make changes to the name, content, or sequence of the data elements and instructions we provide on our website;
  • Do not insert additional data elements or language; and
  • Retain generated forms according to the standards specified in 8 CFR 274a.2(e), (f), (g), (h) and (i), as applicable.

You may also use any commercial computer program or automated data processing system that complies with these standards. Ensure that the program or system does not restrict access or use by a U.S. government agency.

Using an Electronic Storage System for Form I-9

You may retain Form I-9 using either a paper or electronic system, or a combination of both. If you complete a paper Form I-9, you may scan and upload the original signed form, correction or update, and retain it electronically. You may destroy the original paper form after you have securely stored it in an electronic format. Any electronic system you use to generate Form I-9 or retain completed Forms I-9 must include:

  • Reasonable controls to ensure the system’s integrity, accuracy, and reliability;
  • Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used;
  • An inspection and quality assurance program that regularly evaluates the system and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used;
  • An indexing system that allows users to identify and retrieve records maintained in the system; and
  • The ability to reproduce legible and readable paper copies.

If you choose to complete or retain Form I-9 electronically, you may use one or more electronic generation or storage systems, as long as any Form I-9 retained in the system remains fully accessible and meets the regulations. You may change systems as long as each electronic system used meets regulatory performance requirements. For each electronic system used, you must maintain and make available upon request complete descriptions of:

  • The system, including all procedures relating to its use; and
  • The indexing system that identifies and retrieves relevant documents and records. You do not need to maintain separate indexing databases for each system if you can achieve comparable results without doing so.

Documenting Your Form I-9 Business Processes

If you choose to complete or retain Form I-9 electronically, you must maintain (and make available upon request) documentation of the business processes that:

  • Create, or generate, the retained Form I-9;
  • Modify and maintain the retained Form I-9; and
  • Establish the authenticity and integrity of the forms, such as audit trails.

Electronically Signing Form I-9

If you complete Form I-9 electronically using an electronic signature, your system for capturing electronic signatures must:

  • Allow individuals to acknowledge that they read the attestation;
  • Attach the electronic signature to an electronically completed Form I-9;
  • Affix the electronic signature at the time of the transaction;
  • Create and preserve a record verifying the identity of the person producing the signature;
  • Upon the employee’s request, provide a printed confirmation of the transaction; and
  • Include a method to acknowledge you have attested to the required information in Section 2.

If you choose to use an electronic signature to complete Form I-9 but do not comply with these standards, DHS may determine that you have not properly completed Form I-9 and are in violation of section 274A(a)(1)(B) of the INA (8 CFR Part 274a.2(b)(2)).

Retaining Electronic Form I-9 Securely

If you retain Form I-9 electronically, you must implement an effective records security program that ensures:

  • Only authorized personnel have access to electronic records;
  • You have a backup plan to recover records to protect against information loss;
  • Authorized personnel are trained to minimize the risk of wrongfully or accidentally altering or erasing electronic records; and
  • The system creates a secure and permanent record when an individual creates, completes, updates, modifies, alters, or corrects an electronic file. This record should include the date of access, the identity of the individual who accessed the electronic record, and the particular action(s) they took.

If your action or inaction results in an electronic record being altered, lost, or erased, and you knew, or reasonably should have known, that the action or inaction could have that effect, you may be found in violation of section 274A(b)(3) of the INA (8 CFR 274a.2(g)(2)).

10.2 Retaining Copies of Form I-9 Documents

If you choose to copy or scan documents an employee presents when completing Form I-9, you must retain the copies (or electronic images) with their Form I-9 or their employee record.

Making copies of an employee’s documents does not take the place of completing Form I-9. Even if you retain copies of documents, you are still required to fully complete and retain Form I-9. If you choose to retain copies of an employee’s documents for reasons unrelated to E-Verify requirements, you must do so for all employees, regardless of actual or perceived national origin, citizenship, or immigration status, or you may violate anti-discrimination laws.

Copies or electronic images of documents must be retrievable consistent with DHS’s standards on electronic retention, documentation, security, and electronic signatures for employers and employees, as specified in 8 CFR 274a.2(b)(3).

If you make copies or electronic images of the employee’s documents, you must retain them with the corresponding Form I-9 or with the employee’s records according to the electronic records retention standards specified in 8 CFR 274a.2(b)(3). However, if you make copies or electronic images of the employee’s documents, you must make them available at the time of a Form I-9 inspection by DHS, DOJ or DOL.

If you are an E-Verify participant and choose to use an alternative procedure to remotely examine your employee’s Form I-9 documentation, you must retain clear and eligible copies of all documents you examine with the employee’s Form I-9. For more information, see Section 4.1, Retaining Copies of Documents Your Employee Presents.

10.3 Inspection

The INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I-9, including any copies of employees’ documents retained with the corresponding Form I-9. Officers will give you a minimum of three business days’ notice before starting an inspection. You must make Forms I-9 available upon request at the location where DHS, IER, or DOL officers request to see them. You may also send Forms I-9 and supporting documents to the agency in electronic format or hard copy, if requested.

If you store Form I-9 records at an off-site location, tell the inspecting officer where the location is and make arrangements for the inspection. The inspecting officers may perform an inspection at an office of an authorized agency of the United States if previous arrangements are made. Recruiters or referrers for a fee who designate an employer to complete employment verification procedures may present copies or printed electronic images of Forms I-9 at an inspection.  If you refuse or delay an inspection, you may be found to have failed to comply with the statutory and/or regulatory requirements above.

During an inspection, you must:

  • Retrieve and present only the Forms I-9 and supporting documents the inspecting officer specifically requests. Supporting documents include copies of Form I-9 documents stored with Forms I-9 and associated audit trails that show the actions performed within or on the system during a given period of time.
  • Provide the inspecting officer the appropriate hardware, software, personnel, and documents necessary to locate, retrieve, read, and reproduce any electronically stored Form I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records.
  • If requested, give the inspecting officer any reasonably available or obtainable electronic summary files (such as spreadsheets) containing all of the information fields on any electronically stored Form I-9.

If you are an E-Verify employer and you receive a request for inspection, you should provide Forms I-9 that contain E-Verify case verification numbers. If you did not include the E-Verify case numbers on Form I-9, provide the E-Verify Case Detail Pages during the inspection.