Employment: Form I-9S - Frequently Asked Questions from Employers

06.01.10

How long must employers retain I-9s?

Employers must have existing I-9s for all employees hired after November 6, 1986. Employers should not remove any I-9s for employees who are still employed.

Employers are required to maintain I-9s for terminated employees for the later of three years after the employee is hired or one year after employment is terminated. The key language in implementing this requirement is "later of."

Are employers required to retain copies of the documents provided for the I-9?

No. Retaining copies of the documents is optional. However, if an employer chooses to retain copies, it must do so consistently for all employees.

Can I fill out a new I-9 instead of doing the reverification when the employee is rehired?

Generally, yes. Employers have the option of completing a new I-9 instead of using the Section 3 reverification on the old I-9 when rehiring an employee as long as the rehire is within three years of the employee's original hire date. However, if the employee's original I-9 was completed on the I-9 dated June 5, 2007 or a previous version, the employer must complete a new form I-9 upon rehire. If an employer decides to complete a new I-9 they are not required to keep it with the old I-9. However, depending on the employer's filing and retention tracking system, it may be easier to do this, as the retention requirements would apply to both I-9s.

Can an employer maintain I-9s electronically?

Yes. However, there are very specific requirements for doing so. These requirements are contained in the Department of Homeland Security, Handbook for Employers, Instructions for Completing the Form I-9, available here.

By Hilary L. Velandia, hvelandia@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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