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What are the requirements and options for retaining the Form I-9? |
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by J. Bradley Pace, Attorney at Law
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Friday, 15 January 2010 |
 Question: What are the requirements and options for retaining the Form I-9?
Answer: Employers should be aware that they are required to retain the completed I-9 forms for all their employees for 3 years after they hire an employee, or 1 year after the date the employment is terminated, whichever is later. The employer has several options as to how to retain these documents: paper, microfilm, microfiche, or electronically.
Traditionally paper has been the most common and simple retention method. The forms may be stored onsite or off-site. The key requirement is that they be accessible for presentation to the government within 3 days in the event of an audit.
When storing I-9 forms on microfilm or microfiche remember that the film stock used must be of sufficient quality to preserve the image and allow for accessibility for many years. For example, a 30 year employee's I-9 stored on microfilm must remain readable for his or her entire period of employment, plus one year. DHS suggests that employers place the required 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, the indexes should be placed in the last frames of the last microfiche or microfilm jacket of a series.
A recent trend has been to store the I-9s in an electronic format. USCIS now provides a portable document format fillable-printable Form I-9 on its website, www.uscis.gov. Forms electronically generated or retained must always be legible and the process must not alter or add data to the I-9. Specific standards for the electronic I-9 can be found at 8 CFR 274a.2(e).
Of course, appropriate measures must be taken to ensure the integrity of any electronic storage system. This would include controls to prevent alteration or deterioration, including the electronic signature, if used. The employer should conduct periodic quality control inspections and evaluations to be certain the forms remain legible and accessible. Also, a searchable indexing system must be used.
J. Bradely Pace is an Attorney at Law and also serves as Of Counsel to the law firm of Versfeld & Hugo, LLC. For questions regarding this week's I-9 Tip of the Week, please contact J. Bradley Pace at 913.226.6755.
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