A New Twist on I-9's

Dianna · March 2002

We recently made the decision per our legal counsel NOT to keep copies of documentation with our I-9's. As such, I did an audit and removed the copies of the documentation from all of our active employees and all of the terminated employees that hadn't yet been pulled out of the active files.

My question is, am I legally required to go ahead and pull off the documentation for all of the other terminated employees? I wanted to go ahead and do it so we are consistent across the board, but my director thinks we can just state that we made the decision at the beginning of this year to no longer make copies of documentation. I'm interested to see what everyone thinks. Thanks!

Margaret Morford · March 2002

As a practical matter, I would save myself the time and not do it. I am assuming that you have a procedure that disposes of old I-9's and personnel files after a certain amount of time. With time, the documentation attached will no longer exist and you will be consistent across the board.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

slewis · March 2002

What was the reason you were told to not keep copies. Just out of curiosity.

Dianna · March 2002

I still have the letter sent to us by the attorney, and it states:

"Under the law, you are not required to copy or retain the I-9 documentation. While you may retain copies of these documents, we recommend against doing so. The biggest potential problem is that a pattern of retaining documents from employees of certain national origins or citizenship might develop (or be created by an overzealous plaintiff lawyer). Therefore, it is preferable that you do not retain copies of the I-9 documents. To satisfy your obligations with regard to I-9 documentation, you should simply ensure that section 2 of the I-9 Form is always completed in full."

slewis · March 2002

Thank you.

Margaret Morford · March 2002

If you will do a search on the Forum, there is a thread that discusses why you shouldn't attached the documentation. You might find it helpful.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D · March 2002

Unless your State laws require otherwise, and I doubt they do, it is optional to keep or not to keep. And, I would recommend that you start at the point at which the decision was made, not necessary to go back and show consistency when, in fact, the old practice was wholly INconsistent with your new practice. Should a review generate a question as to why it appears inconsistent, I would simply explain that a decision 'not to keep' was made on or about (date) and from that date forward, you will see a change in our recordkeeping practice.

HR in Okla · March 2002

I would like to interject another twist. I want to be sure I understand the INS handbook I have: Can we dispose of I-9s on current employees who have been employed longer than 3 years? The material says "Retain the Form I-9 for 3 years after the date the person begins work or 1 year after the person's employment is terminated, whichever is later." It's confusing enough to figure out when to get rid of a terminated person. We have some 1-9s that are 12 years old or more, but the person is still an employee. Can I shred them?

Margaret Morford · March 2002

No. Keep all I-9's for a minimum of one year after the person quits. So you will always have an I-9 on every active emplyee at all times. However, if a person quits anytime in the first or second year of employment, you need to keep the I-9 for three years from the date they started work. Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

HR in Okla · March 2002

Thanks for the quick response, but my question applied to current employees, not terminated ones. I may be trying to read something into the handbook that isn't there, I went through some material on Records compliance and it said "audit your I-9s every year to be sure you have one on every employee." That sounds like as long as they are employed, I need to keep the original I-9.

Your interpretation?

slewis · March 2002

Yes, keep I9's on all active employees. The only reason to throw them out would be if the person terminates and then only after the amount of time applicable to that person. 1 year after termination or if person is employed less 1 or 2 years, you must retain them 3 years from the hire date. For instance if someone only works for your company for a year and leaves. If you keep the I9 one year after that then you are not in compliance because it says one year after term or 3 years from hire date. In this case you would need to keep it 3 years from the hire date because that is the later of the two dates. If someone is employed with your firm for 5 years then leaves you only need to keep the I9 one year from the term date. I hope this helps.

sylvia · March 2002

Does this mean we have to have I-9's on all current employees including those that were hired before the Immigration Reform and Control Act of 1986? We have many employees who have been with the company over 15 years. As I understand it, we only needed to verify employment of anyone hired after November 6, 1986. Is this correct?

Margaret Morford · March 2002

Yes.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Granhel · March 2002

Definitely the term files should also be cleaned out. In seminars I have been told that you should never keep I-9 documentation. The I-9 instructions do not require that documentation be retained, just reviewed and noted on the I-9. We sign verifying that we have reviewed the documents and I am told that is sufficient. Consistency in all personnel files is best in my opinion. If you are only retaining your terminated employee's I-9's for the lawful retention period you may not have to many to go through.

"Form I-9 must be retained by the employer for three years after the date of hire or one year after the termination of the individual's employment, whichever is later." (quoted from Council on Education in Management Revision 2.00-1-day Personnel/HR Record Compliance Workshop.

Jamie · March 2002

I just talked to the INS this week and asked them if copies should be kept and they strongly urged that this is done to prove we saw the documents. So, what if the INS comes in and we don't have copies to prove ourselves? It doesn't sound like much based on these other responses (?).

Dianna · March 2002

My thinking is that you actually have to see the documents in order to write the information down that is required (i.e. document number, expiration date). So I don't think keeping documentation is necessary.

A New Twist on I-9's

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