Important Updates Regarding I-9 Verifications and Document Retention Requirements

DHS Ending Temporary I-9 Order Allowing Employers To Verify I-9s Virtually

In response to the ongoing challenges posed by the COVID-19 pandemic, the Department of Homeland Security (DHS) had implemented temporary measures that allowed for employers to verify new hire identification and work authorization documents virtually. This temporary order will end on July 31, 2023.

What does this mean for your organization?

When the temporary order expires, employers must return to the previous requirements for I-9 verifications. Specifically, this means that I-9s must be completed within three days of the new hire’s first day of employment, and identification and work authorization documents must be confirmed in person by the authorized employer representative who is completing the I-9 form.

In addition, I-9 documents for all employees hired since March 20, 2020 must be re-verified if those documents were verified virtually at the time of hiring.

Action Required:

• If ARI manages your new hire on-boarding process in-person, ARI is the authorized employer representative and you do not need to make any change to your process.
• If ARI does not complete your new hire on-boarding in-person, and it is feasible for us to do so, please speak to us about being your authorized employer representative.
• However, if it is not feasible for ARI to be your authorized employer representative, please contact us to review your current I-9 verification process. We can ensure that those employer representatives responsible for completing your I-9 forms have been properly trained on this process.

Reverifying I-9s Since March 2020:

In addition, employers have until August 30, 2023, to review and verify the documents of any employee hired since March 20, 2020. If the person who virtually examined the documents is not the one who performed the physical inspection of the documents at that time, then the employer representative conducting the physical inspection should complete a new Section 2 of the Form I-9 and attach that to the complete remote inspection Form I-9.

Action Required:

• Any I-9 form which was completed by virtually inspecting work authorization documents must be re-verified. Please contact ARI for assistance and further instruction regarding this re-verification process.

Requirements for Retention of I-9 Documents

It is important for employers to understand and follow I-9 retention requirements, especially since DHS typically only gives 3-days’ notice of an inspection.

I-9s must be retained:

• For all active employees, for the duration of employment
• For terminated employees, for one year after the date of termination or three years after the date of hire, whichever is later

Once the retention period has passed, I-9 documents should be securely destroyed since they contain sensitive and confidential information. For any I-9 documents stored electronically, extra care should be taken to ensure that they are only accessible by those who are authorized, and they are deleted in a manner that prevents information from later being recovered or retrieved.

Employers that purge I-9s too early and are found to be out of compliance can face penalties as high as $2,300 per I-9 document. Purging I-9s in line with the retention requirements reduces an employer’s liability should an inspection occur.

It should also be noted that I-9 forms and supporting documentation must be kept separate from all other employee files. The best practice is for all employer’s I-9 forms to be kept in a separate binder (for physical files) or electronic folder (for electronic files), in a location separate from all other employee files.

Action Required:

• Please contact ARI to review your current I-9 storage and retention processes and discuss adjustments.
• If ARI stores your I-9s, you do not need to take any further action in this area.

ARI provides comprehensive human resources services, supporting our clients in implementing the immediate and long-term HR needs of small to mid-size businesses. If you are looking for guidance in this area, contact us.