Employers often fail to shred old Forms I-9 that are beyond the retention requirement, even though this can lead to compliance liability.
Why does it matter?
U.S. Immigration and Customs Enforcement (ICE) typically gives employers only three business days to produce I-9s and associated documentation. In the mad dash of responding to this notice of inspection (NOI), employers may not have the time or resources to remove or pull out those purgeable I-9s from the documents sent to ICE. In such cases, the agency may review and consider the old I-9s in assessing paperwork fines and penalties against the employer.
Errors on forms for terminated employees are difficult, if not impossible, to correct. In the event of an ICE audit, such errors could create compliance violations that cannot be mitigated.
Timely purging is a great general risk-mitigation strategy, especially considering that a completed I-9 has much personally identifiable information, including an employee’s name, Social Security number and address.
How Long Must I-9s Be Kept?
I-9s must be retained either one year after the date of termination or three years after the date of hire, whichever is later.
Some employers have read that requirement and mistakenly interpreted it to mean that they could destroy I-9 forms of their current employees after a three-year period. But the retention period for an I-9 comes into play only after the employment is terminated.
If you use a third-party administrator to maintain the I-9 records on behalf of the company, the same retention rules apply and it is recommended that you ensure the third-party administrator have implemented a compliant retention policy said.
How Should Employers Get Rid of Old I-9s?
The National Institute of Standards and Technology recommends for destroying paper files using a cross-cut shredder.
Similarly, I-9s stored in an electronic format should also be purged using a well-documented and secure data wipe process that prevents information from later being recovered or retrieved.
What Are the Risks of Purging I-9s Prematurely?
Accidental or premature purging of I-9s can be disastrous, particularly when an employer receives an NOI from ICE demanding I-9s that no longer exist. In those instances, the employer will need to complete new I-9s as soon as possible, and even then, they still face potential liability for late-completed verifications.
Employers that purge I-9s too early and are found to be out of compliance can face penalties as high as approximately $2,300 per I-9 on average.
Bottom line: It is prudent to make a purge process part of the I-9 compliance.
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Article written by HR NETwork as of July 26, 2023.