I-9s must be retained for the duration of an employee's employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer. Employers must keep a record of employees whose work authorizations will expire and reverify the authorization to work of such employees prior to expiration.

It is desirable to review every I-9 form the employer has prepared. To accomplish this is goal, INS recommends that the party conducting the audit start by identifying every employee hired (or rehired) after November 6, 1986, using payroll records or other records. Next, create two master lists of: (i) all active employees, with their dates of hire noted; and (ii) all terminated employees for whom an I-9 form is required, with dates of hire and termination noted. Create an "I-9 audit tracking form" for every listed employee, filling in each employee's name, date of hire, and date of termination (if applicable).

The appropriate action for employers to take concerning Forms I-9 that are lost, destroyed, or not maintained as required by the retention requirements of the INA is to come into compliance with the law as quickly as possible. However, past violations of this nature cannot be retroactively corrected.

For small employers, INS recommends a "binder system" for maintaining I-9 forms. In the binder system, the employer keeps two large three-ring binders, one for current employee I-9 forms and one for terminated employee I-9 forms. Organize the employer's I-9 forms alphabetically by employee within the binders. When a new employee is hired, her or his I-9 form is to be placed in the current employee binder. At the time an employee is terminated, her or his I-9 form is transferred to the terminated employee binder, and the date of termination is noted in the margin of the I-9 form. Periodically review the terminated employee binder to determine which I-9 forms may be discarded and which must be retained pursuant to the requirements of 8 CFR 274a.2 (b)(2)(i)(A).

Finally, maintaining photocopies of documentation that the employer has examined in the course of completing I-9 forms makes it easier for the employer to conduct the periodic audits of its IRCA compliance effort. The OCAHO has found photocopying documents and attaching those copies to the I-9 form to be a mitigating factor in the imposition of a fine.

Practice indicates that the I-9 forms should be kept separate from employee personnel files to avoid charges of discrimination based on the information contained on the forms concerning an employee's age and national origin. In addition, keeping I-9 forms separate from personnel files facilitates their production at the time of an INS audit. It also eliminates the necessity of separating the I-9 forms from the personnel files at the time of an INS audit or producing personnel files for the INS that may contain sensitive or business information to which the INS would not otherwise be privy. Evaluate and Meet Employer's Education and Training Requirements.

Top