Q. My boss is concerned about the increased penalties against employers who hire illegal aliens. He wants to be sure our procedures are in keeping with the best practices. One question I have: What do we do with the documents that new employees present to comply with the I-9 requirements? Should we keep copies of them? And, if so, where? –G.S.
A. There are two main schools of thought on this question: One (probably the majority view) is that you should make and keep copies of the supporting I-9 documents. It shows that you examined them and demonstrates your good faith effort to comply.
Another view is that you should save the documentation only for those applicants who are rejected for I-9 reasons. People who hold this position are concerned that retaining the documentation on employees who are hired (which is not required) would enable an enforcement agency to find any small discrepancy between the documents and the completed I-9s.
Saving backup documentation on the people who are rejected for I-9 reasons could help in two ways: First, it shows that you took the I-9 process seriously, as you rejected people who did not fulfill the I-9 requirements. Second, saving the backup documents on those rejected will help you defend against discrimination or other failure-to-hire cases because you’ll be able to point to the inadequacies of the backup documentation as the legitimate nondiscriminatory reason for rejecting an applicant.
If you follow the majority view and keep the documents of those who are hired, the general practice is to keep the I-9 form and copies of the supporting documents separate from the personnel file. If you keep documents for one employee, you are required to keep documents for all employees. Keeping the documents in a central location will allow you to respond more quickly to an immigration audit. It is especially important that the I-9 information is safeguarded from disclosure or unauthorized access no matter where it is kept.
Before deciding which approach to take, it may be wise to discuss the issue with a lawyer who can evaluate which approach makes the best sense for your particular situation.