Form I-9 Retention Requirements: The 3-1 Rule

January 4, 2017
Mike Fowler
Find me on:

Estimated Read Time: 3 Minutes

Form I-9 Retention

 

Every employer is required to maintain Forms I-9 for every employee on their payroll for the entire time that they are employed with their organization. While this fact is simple, the details for Form I-9 storage and retention can be arduous and often confusing. The following are a few highlighted tips for storage of your employees’ Forms I-9.

First, While it is required to retain sections 1, 2, and 3 of the Form I-9, you are  not required to maintain the instructions section of the form. If you work for a larger corporation, this may translate into saving a huge amount of storage space. You may also store your employees’ Forms I-9 digitally, though the USCIS provides some additional requirements if you choose to do this.

Retention of identification documents

Some organizations choose to also retain copies of the identification documents used for Section 2 and 3 of the Form I-9. While this is not a requirement, some retain this information as an added level of documentation to show their level of scrutiny. However, if you decide to retain identification documents for your employees, you must retain them for all employees.

 

Storage best practices

With the potential that your organization could be audited by Immigration and Customs Enforcement (ICE), there are a few additional best practices that we suggest for your Form I-9 storage. In the event that you become the subject of an I-9 audit, your organization will be required to produce your forms within three business days. This time-frame should be kept in mind when deciding how to store the forms.

Consider storing your Forms I-9 separately from other personnel files in order to remove the potential hassle and time-suck of having to separate them, before sending them for an audit. Additionally, you should consider the location where you store the documents. If you store your forms off-site, make sure to take into consideration the amount of time it takes to retrieve documents from that location. It wouldn't be a good idea to store your documents in a location that has a seven-day turnaround from request to receipt.

 

Employment Eligibility Verification
The Companion Guide

The topic of The Form I-9 is a tricky labyrinth to navigate these days. Let us help with the directions.

Get the eBook »

 

Retention timeline - the 3-1 rule

Employers are required to maintain Forms I-9 for an employee for 3 years after their date of hire or 1 year after they leave your organization.

Here are a few examples to help clarify:

 

John

John is hired at ABC International, but shortly after decides to seek employment elsewhere. He leaves for another job after six months.

Since John has only worked at the organization for six months, ABC International is required to retain his Form I-9 for 3 years past the date of hire. That amount of time is longer than 1 year past the date of termination, so they will need to retain his documents for another 2.5 years to follow the 3-1 Rule.

 

Samantha

Samantha, who is also employed with ABC International, leaves the organization after two and a half years.

Samantha passed the threshold for the three-year retention requirement, so her documents will need to be retained for one year after her termination.

 

3-1 Rule

 

“3 years past the date of hire or 1 year past the date of termination, whichever is longer”

The USCIS provides a retention table that also helps to make sense of the 3-1 retention rule.

 

Proper disposal

As a conclusionary note, remember to properly “retire” your organization’s Forms I-9 once their retention period comes to an end. Ensure that you destroy documents in a way that they cannot be reproduced - whether paper or digital. Simply put, this means shredding the documents.

Topics: Forms I-9, Audits



Mike Fowler

Written by Mike Fowler

Mike Fowler is the Educational Services Executive for Validity Screening Solutions, a compliance focused employment screening, drug testing, and hiring technology provider. Mike leads Validity’s educational outreach through professional development content such as an HR focused compliance blog, speaking engagements, and the professional development webinar series - Hire|Ed.