Every employer must make a policy decision: to keep or not to keep copies of the identity and work authorization documents presented by employees for I-9 purposes. And every employer’s policy must be applied consistently, so whichever you choose, be ready to follow it strictly in the future.
Immigration and employment attorneys take different positions on which policy is the best. In making a policy determination, consider the following:
- Consistency is arguably more important here than the decision itself. And it is often easier to consistentlynot do something than to consistently do something. Consider whether hiring is centralized or decentralized in your organization and whether it will be difficult to train your team to make and keep copies.
- To make and keep copies, you must have the ability to make copies. It sounds simple, but some employers may not have a copy machine handy at the hiring site. Particularly for the agriculture and construction industries, making copies may not be feasible.
- If you use E-Verify, you will be required to keep copies of certain documents (the U.S. passport, green cards, and Employment Authorization Documents). For employers who use E-Verify, it is often easier to follow a consistent policy of keeping copies of all documents than to remember which documents are on the list (and to keep up with changes to the list).
- Keeping copies can turn so-called “substantive” errors into “technical or procedural” errors. This is important because substantive errors are the errors for which ICE typically imposes fines, whereas technical errors rarely give rise to fines. For example, the failure of the employee to input his alien number (A#) in Section 1 of the form is a substantive, fine-able offense unless the employee happened to present a document containing his A#, and the employer made and kept a copy.
- Copies can be used to support a defense to a charge that you knowingly hired an unauthorized worker.One of the most serious I-9 charges you can face as an employer is that you knowingly hired an unauthorized worker. If, however, the employee presented work authorization documentation that appeared to be genuine, you can use a copy of the document as one piece of evidence showing that you had no reason to know that the person lacked work authorization.
- Copies can be used against you to prove that you knowingly hired an unauthorized worker. If ICE believes that the document copies contain glaring errors, indicating that you knew or should have known that it was fake, the copies could give rise to serious civil and/or criminal liability.
- Copies make it easier to correct I-9 errors. If you complete a voluntary audit/review of your I-9 forms (and most attorneys recommend that you regularly complete such audits), having copies of the documents on hand makes correcting errors much simpler than when copies do not exist. For example, if you failed to complete the passport number in Section 2 of the form, but you have a copy of the passport handy, you maybe able to input the number now. (Note that making corrections to I-9s presents complex legal issues, and it is best to consult with an experienced attorney before attempting to do so. Whether you may legally make a change depends on a number of factors, and if you do make the change, you need to ensure that the appropriate person makes the change and that the change is properly made and initialed/dated.)
- U.S. Immigration and Customs Enforcement (ICE) likes it when employers keep copies. If you keep copies, you may get “brownie points” in the event of an ICE inspection of your I-9s. Brownie points can be valuable when it comes time for ICE to decide whether to fine you for errors.
As with most immigration issues, you should consider working with an experienced immigration compliance attorney to determine the best option for your company or organization.