Do You Have to Keep Form I-9 for Former Employees?

The Form I-9 process has many layers, each important for achieving compliance. Most employers focus on accurately completing the Form. However, what happens after populating it is also critical. Securely storing I-9 forms is imperative, in part because you may need to retrieve them for a future audit.

Does that mean you must retain every Form I-9 your business has ever handled? What happens when an employee leaves the company? Federal regulations and guidance from the U.S. Citizenship and Immigration Services (USCIS) can help answer these and many other questions related to Form I-9 retention. Let’s review some of these answers.

Retain Records for the Duration of Employment

Companies must securely store a completed Form I-9 for all employees on their payroll who were hired after November 6, 1986. Remember, Section 1 of an individual’s Form I-9 must be completed by their first day of employment and Section 2 must be completed within 3 business days of the individual beginning employment. When completing the Form I-9 with the employee at the start of their employment, you should be sure to record the first date of employment on the Form I-9. Not only is it a required field, but it will also be essential for calculating retention dates if and when the employee separates from your business.

Explore the USCIS Handbook for Employers M-274 for more information about secure storage and how to retain I-9 forms.

Retention Rules When Someone Leaves Your Company

When an employee leaves your business, you cannot immediately discard their Form I-9. Remember, the government may still request an inspection of your Form I-9 records, even if someone is no longer working for you.

The general requirement for how long to retain a Form I-9 is this: you must retain an individual’s Form I-9 records for three years after the date of hire or one year after the end of employment—whichever is later. Let’s simplify that:

If an employee’s tenure is less than two years, you are generally required to retain their Form I-9 for three years from the first date of employment you listed on their Form I-9.

When an individual has worked for you for over two years, you typically must retain their Form I-9 for one year after their final workday.

When employees leave your business, you should consider calculating the length of time for which you must retain their Form I-9 as soon as possible. The USCIS makes a Form I-9 retention calculator available on their website to help employers when attempting to do these calculations. Remember to maintain a record of key dates, such as their first and last days of employment, so your teams can complete these calculations and review Form I-9 files to identify Forms you may no longer need to retain.

As with retention rules for existing employees, employers are encouraged to explore the USCIS Handbook for Employers M-274 for more information about secure storage and how to retain I-9 forms.

What If You Don’t Retain Records Properly?

Officials from several government agencies are authorized to conduct Form I-9 inspections with little notice to the entity subject to the inspection. A properly completed and maintained employee Form I-9 can support your organization’s efforts in responding to an inspection in a timely and comprehensive manner. If you dispose of an employee’s record too soon, you could be caught empty-handed during an inspection.

You could face civil penalties for being unable to produce a completed Form I-9, among other violations. This can include hefty monetary fines for each uncovered violation.

To help lessen the headaches that may accompany a Form I-9 inspection, you should ensure you have a system set up to retain records securely and appropriately. It is your responsibility as an employer to have a Form I-9 ready for inspection within a designated time period after receiving a formal inspection notice.

Review Your Procedures on Retention Today

To recap, you must always retain I-9 forms for those currently employed in your business. When someone’s employment with you ends, you will need to calculate the appropriate retention period based on when their employment with you began and ended. The USCIS makes a Form I-9 retention calculator available that can help employers with these calculations when someone leaves their organization. For more information and requirements for proper storage of Form I-9, be sure to review the USCIS Handbook for Employers M-274 and I-9 Central website.

Remember to periodically review your Form I-9 files to determine which forms you are no longer required to retain. When you identify a Form I-9 you will no longer be retaining, be sure to securely dispose of and destroy the records. With such procedures in place, you can help your organization maintain an efficient system for Form I-9 retention .