August 11, 2015

I-9 forms must be retained for three years from the date work commences and for one year from the date employment terminates. This means an employer must have a form for every single current employee hired after November 6, 1986. Note that for terminated employees, both tests must be met before a form can be discarded. Once both tests are met, it is recommended to dispose of/shred the forms because there is nothing in the statute or regulations that prevents ICE from fining an employer for improper completion of a form even though it no longer need be retained. It is also recommended that employers keep I-9 forms in files separate from personnel files, so that ICE does not obtain access to information in personnel files in the event of an audit.

Note that copying of documents presented by the employee is permitted for purposes of compliance with verification requirements. Therefore, it is recommended that employers make copies of the documents presented and attach them to the I-9 form. The photocopies can be used to correct problems identified during a periodic self-audit or in advance of a government audit.

Keep in mind that mere photocopying of documents does not constitute compliance and will result in penalties if the I-9 form is not also properly completed. Do not only request or retain photocopies from employees you suspect are aliens or have foreign sounding names. Doing so is prohibited under IRCA’s discrimination provisions and may also be held to be national origin discrimination under Title VII.

Enforcement Procedures: The Audit

ICE will follow up on any lead deemed to have a reasonable probability of truth.1 Although a lead-driven inspection may initially focus only upon a few employees, it can quickly expand to a full-blown compliance audit. In 1996, IIRIRA authorized INS to enter into work-sharing agreements with state agencies so it is possible that state labor departments will conduct I-9 audits of employers in connection with their regular duties.

An employer, recruiter, or referrer must make I-9 forms available for inspection upon request by an authorized officer of ICE. The employer may, and should, insist upon three (business) days advance notice of a compliance inspection. The employer can also request a formal, written Notice of Inspection.

No subpoena or warrant is required to inspect I-9 forms, but the employer can insist upon a subpoena before granting ICE access to other personnel information. ICE will usually subpoena I-9s and “any and all books, lists, payroll records, and personnel records for each employee hired after November 6, 1986.” While ICE subpoenas are not self-enforcing, there is no immediate legal liability for failure to produce subpoenaed items, failure to comply with the ICE subpoena may have adverse practical consequences, and unless the subpoena is unreasonably burdensome, ICE will usually be able to get a federal court order requiring the employer to comply with the subpoena. Failure to produce I-9 forms is a violation of the retention requirements and will result in penalties.

1 Any person or entity may file a signed, written complaint alleging non-compliance. ICE will also accept and act upon anonymous telephone tips. ICE investigates complaints having substantial validity and may initiate its own investigations even without a complaint. ICE investigating officers “shall have reasonable access to examine evidence.” It is not clear whether this language permits inspection of anything other than I-9 forms in the absence of a subpoena or warrant.