Whitepaper: Should you Copy I-9 Supporting Documents?
Form I-9 Requirement
Under federal law, employers must verify the identity and employment authorization of each person they hire to perform work in the United States and complete and retain a Form I-9, Employment Eligibility Verification. As part of the Form I-9 process, new hires must present original identity and work authorization documents to their employer to prove that they are authorized to work in the U.S. The employer must record the document information, sign the form, and return the document(s) to the employee.
What are I-9 Supporting Documents?
To prove work authorization, employees may choose which
document(s) he or she wants to present from the List of
Certain documents such as a US passport show both
identity and employment authorization (List A).
- Other documents such as a driver’s license show
- identity only (List B).
- While others such as an unrestricted SS card show employment authorization only (List C).st C).
The employer must allow the employee to present EITHER one document from List A or a combination of one document each from List B and one document from List C. The employer must physically examine the document(s) presented to determine if they reasonably appear to be genuine and relate to the employee presenting them.
Are Employers Required to Photocopy and Retain Documents? It depends. Under the I-9 regulations, an employer may (but is not required to) photocopy document(s)
presented by an employee for the purpose of complying with the verification requirements. If an employer has a policy to photocopy documents, the employer must do so for all employees to avoid potential claims of discrimination. However, if you participate in E-Verify and the employee presents a document which requires photo matching (currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766)), you must retain a photocopy of the document he or she presents.
Advantages of Copying I-9 Documents
There are numerous advantages to copying (and retaining) I-9 supporting documents. Below, are a few of the most commonly cited reasons for copying I-9 supporting documents for ALL new hires:
- Maintaining supporting documents may help show good faith to an Immigration and Customs Enforcement (ICE) auditor in the event of an investigation. For example, if an employer is accused of knowingly hiring an unauthorized worker, a copy of the document presented may show that the employer had good reason to believe the person was authorized to work in the U.S.
- Under current ICE enforcement guidelines, retaining copies of I-9 documents could reduce civil monetary fines for common I-9 mistakes, including missing titles, numbers or expiration dates on the form. While making copies is not an affirmative defense against liability, the Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) has also accepted it as a mitigating factor in the imposition of financial penalties.
- Copies of documents facilitate internal I-9 audits and corrections conducted by the employer or trusted immigration counsel as part of a regularly scheduled compliance regime. Back-up documentation can also come in handy as a defense against discrimination claims if the Office of Special Counsel develops an interest in your hiring or termination practices.
- In some instances, employers have to copy I-9 documents in order to comply with E-Verify requirements or certain state laws (such as those in Colorado, Louisiana, and Tennessee). Consistently copying I-9 documents of ALL employees can help ensure compliance with these frequently changing laws and reduce the possibility of disparate treatment.
Potential Disadvantages of Copying and Areas of Concern
While there are many advantages to copying I-9 supporting documents, employ
- No good deed goes unpunished: an employer may inadvertently provide ICE with irrefutable evidence that the employer knowingly accepted false documents – particularly true if the copies show that the ID did not reasonably relate to the employee.
- In all cases, copies cannot be made on a selective basis. To copy the documents of one employee is to copy everyone’s documents. Selective document reproduction raises troubling and potentially actionable allegations of discriminatory conduct.
- An ill-advised employer may mistakenly believe that copying documents alone (without completing the I-9 form) is sufficient under the law – leading to significant penalties. Employers must remember that they are under a strict obligation to review documents and ensure completion of the I-9 Form for all new hires.
- Copying documents may raise privacy concerns, especially if the copies are not securely stored. Unauthorized access to sensitive documents may lead to identity theft and credit monitoring obligations. Employers may overcome this obstacle by using an electronic I-9 and E-Verify system which enables secure storage and comprehensive access privileges.