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Ask the Attorney: Answers to Your Tough Form I-9 Questions

By Ashley H. Kaplan, Esq., Senior Employment Law Attorney

The expert legal team from Poster Guard® Compliance Protection hosted a webinar on “Avoiding Immigration Violations” on February 25, 2016. The 1-hour presentation covered fair and legal hiring requirements under the Immigration Reform and Control Act of 1986 (IRCA), as well as specific guidance on the I-9 employment verification process. Since the webinar first aired, Ashley Kaplan, Esq., has handled numerous questions from participants.

Here are a few of those questions that can help your business:

Q: Because we use E-Verify, we don’t usually keep photocopies of employee documents with the I-9. However, I was told that I should if a passport was submitted. Is this true?

A. If you use E-Verify, you’re required to keep copies of certain documents, like U.S. passports, green cards, and employment authorization documents if presented by employees. For most employers using E-Verify, it’s best to keep copies of all employee documents, rather than try to remember which ones are on the list.

Q: If we have to keep the I-9 for one year after the employee’s termination date, why are we allowed to dispose of it after three years of employment? That doesn’t make sense.

A. You must keep an I-9 for each employee for either three years after the employee’s first day of work or for one year after the employee’s last day of work, whichever is later. That means you should have an I-9 form on file for every current employee (unless they were hired before November 1986), and you should have a completed form on file for every employee who has recently left your company.

You should always compare the dates and go with the longer period. For example, what if an employee only works for you for a short time, like a few months? In that case, the three years from the employee’s start date would be longer than the one year after the termination date, so you would go with the former. The point is that you need to review both dates and not necessarily default to ‘one year after termination’ date.

After that, you should shred and get rid of the files. Otherwise, you’re liable for any problems with the forms or employees if you get audited – even though you weren’t required to keep the forms.

Q: Can I complete an employee’s I-9 prior to the first day of work? (For example, if I hire an employee on Friday, but he starts work on Monday?)

A. Yes. You may complete the form earlier, as long as the person was offered the job and has accepted it.

Q: Is it OK to accept photocopies of the authorization documents?

A. No. Employees must present original documents. The only exception is a certified copy of a birth certificate. Remember, too, that expired documents (like a U.S. passport) are no longer acceptable.

Q: If an employee provides a passport, we can’t ask for a Social Security card, correct?

A. That’s correct. The most common document new hires provide is a U.S. passport, which fulfills both the identity and employment authorization requirements. However, you can’t tell an employee what types of documents to present. They can offer any document or combination of documents on the approved Form I-9 list. For example, you can’t request that employees show a Social Security card or “green card,” since the list of acceptable documents includes other options to prove work eligibility. ​

Ashley H. Kaplan, Esquire is the Senior Employment Law Attorney for HRdirect®. Ashley handles all aspects of legal compliance and oversees the teams responsible for researching and developing Poster Guard services to meet our customers’ diverse needs. Before joining HRdirect, Ashley practiced law with a national firm representing employers exclusively in labor and employment-related matters. With more than 20 years of experience as a labor and employment attorney and litigator, she has successfully defended businesses of all sizes in federal and state court and government agency proceedings. She also has trained hundreds of employers on how to manage HR compliance matters to avoid legal trouble.​

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