Employment Law Blog

News, trends and analysis in employment law and HR

Oct 01, 2013

Do you keep photocopies of I-9 documentation?

Immigration 

Determining whether to keep photocopies of the documentation provided during the Form I-9 process can be a tough decision for employers to make.

Determining whether to keep photocopies of the documentation provided during the Form I-9 process can be a tough decision for employers to make. On the one hand, employers aren’t required to retain copies of employment authorization documents, and having them on hand creates an obligation to keep those documents secure and confidential. On the other hand, if your I-9s are audited and you haven’t kept photocopies of employment authorization documents, it becomes difficult to defend your decision to accept those documents in the first place. Having the photocopies can help support you during an audit; but if they are clearly invalid, having photocopies will undermine any argument that you complied in good faith with the Form I-9 process.

The moral of the story: Retaining photocopies of employment authorization documents can either harm or help you, and deciding whether to do so depends on your level of comfort with the authenticity of the documents you’ve reviewed. Based on the trends we’ve seen from government auditors, Vigilant recommends employers keep photocopies of the employment authorization documents, but remain extremely diligent in reviewing and authenticating them when you do so.

Another good piece of employment law advice: Be sure to photocopy both sides of the document. Many forged documents will contain mistakes on the back side, even if the front looks completely legitimate. If possible, you should also make photocopies in color to get the best replication of the document you actually viewed. Also, taking the time to self-audit your From I-9s can prepare you for a government audit and ensure that every employee’s paperwork is properly completed. For full color pictures of acceptable work authorization documents, review the I-9 “Handbook for Employers,” available through the U.S. Citizenship and Immigration Services (USCIS) website. You can also order the USCIS “Guide to Selected U.S. Travel and Identity Documents,” which contains more extensive color examples of acceptable documents. Having these resources at your side, along with your Vigilant staff representative on speed dial, can help you successfully navigate through the I-9 process and secure valid employment authorization documentation. You may also want to check out our Legal Guide, “Form I-9: Surviving an Immigration Audit” (1420). For more help on this issue and other complex employment issues, contact us to learn about ongoing employer counsel with Vigilant.

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