When a new employee hands you a driver’s license or Social Security card as a supporting document for I-9 purposes, do you make a copy and file it away? Federal law says you’re allowed, but not required, to make such copies. Employment-law attorneys seem divided over whether it’s a legally smart move. (Note: Some states prohibit keeping copies of certain types of supporting documentation, while a handful of other states--including Colorado and Arizona--require employers to keep copies of I-9 documentation.)
Pros: Some lawyers suggest you retain copies to protect your organization against fraud or discrimination allegations.
If you face an I-9 audit by Department of Labor (DOL) or immigration officials, keeping copies allows you to say, “I acted in good faith. Maybe this person wasn’t legally authorized to work here, but the documentation he gave me looked authentic. Just look at the copy!”
Plus, you can use the copies if you later find omissions or mistakes on completed I-9s.
Cons: Some lawyers maintain that you’re taking a legal risk by holding on to such copies. During an audit or lawsuit, officials may look at your copies and say, “These obviously look like fraudulent documents, and yet you accepted them anyway.” Or, if you keep copies for some employees but not others, you may appear to be hiding something.
In essence, you’ve created legal ammunition that the feds could use against your organization.
Our advice: Keep copies of supporting I-9 documents. If you're truly reviewing documents for authenticity, the benefit you’ll gain from having evidence of good-faith actions is stronger than the legal risks.
Tip: According to U.S. Citizenship and Immigration Services regulations, “The law does not require you to photocopy documents. However, if you wish to make photocopies, you should do so for all employees, and you should retain each photocopy with the Form I-9. Photocopies must not be used for any other purpose. Photocopying documents does not relieve you of your obligation to fully complete Section 2 of the Form I-9 nor is it an acceptable substitute for proper completion of the Form I-9 in general.”