Many employers benefit from a dedicated human resources professional who guides them through the forest of employee compliance and helps them avoid the pitfalls of non-compliance.  Those employers not large enough to merit a dedicated HR professional often struggle to figure out what they need to do to comply with federal and state laws related to their employees. I-9 compliance is an area where employers sometimes struggle.

What is an I-9?

Form I-9 is one form required by the federal government. An employer must complete an I-9 for all employees.  The I-9 guides the employer to properly verify that its employees are legally authorized to work in the United States.  Some employers use an electronic system called E-Verify to accomplish this task, but those still relying on paper I-9’s (most small businesses in our experience) can benefit from guidance on I-9 forms and where and how to store them.

Common Problems with I-9’s

The most common problem with I-9’s is that they are missing!  Businesses are required to keep an I-9 for every employee, and must be able to produce them to the federal government if requested.  

Another common problem with I-9’s is that they are not signed.  Employers must make sure employees not only fill out the I-9 but also that they sign and date the form. Getting the I-9 signed should be part of the onboarding process.  Reviewing them for completeness should be a part of that process as well.

Where and how to store them is another matter altogether…

Storage of I-9’s

Many employers manage to get an I-9 for every employee, and they manage to get them all completed correctly, signed, and dated, but then they typically file them in the individual personnel file of the employee.  Where else would you logically file this employee form?  Most employers, however, never suspect that filing the I-9 in the employee personnel file can increase the employer’s exposure.

If you have 20 employees or less, storage of the I-9’s, filed alphabetically by last name, in one or more files marked “I-9’s” is a best practice. If you have more than 20 employees you might need to divide multiple files alphabetically. When any employee separates from employment for any reason (resigns, quits, retires, never shows up to work again, or even passes away) the employer should remove that employee’s I-9 and place it in a separate file, still filed alphabetically, called “I-9’s of Prior Employees.” 

If the Department of Homeland Security (or other government agency) should arrive on your doorstep and request a specific I-9 you can quickly retrieve it from your alphabetical filing system in the I-9 folder or folders. If they ask to see all I-9’s you can give them just the I-9 folder(s).  While the government is entitled to inspect these forms, if it requests to do so, you do not want government employees viewing the private/personal information of all of your employees during that process. Theoretically, allowing such access could violate your employee’s right to privacy opening you up to legal exposure.  In addition, once the full personnel files are open for inspection, if that is where the I-9’s are kept, the employer may also be open to additional questions and higher scrutiny that could lead to a government investigation into other matters well beyond I-9 compliance.

The simple task of pulling the I-9’s from the personnel files and storing them together in one place is a great way to respect and protect employee privacy and to keep the number of files that get opened in an inspection to a minimum. Employers not using E-Verify can easily meet the I-9 retention requirements and simplify the process should a review become necessary by implementing this best practice.

Jacquelyn Jordon Core and Michael T. Voytek are Founding Partners at Jordon Voytek. Jacquelyn and Michael focus their practice on mergers and acquisitions, and corporate structuring and restructuring, as well as general corporate advice and assistance.  They are available to assist businesses of all sizes with general counsel services, meeting their day-to-day legal needs. To contact them please contact Jacquelyn directly at Jacquelyn@JordonVoytek.com, or by phone at 304.777.0790, or contact Michael directly at Michael@JordonVoytek.com, or by phone at 203.360.6232.