Your company is not the only one with a record retention policy. Even the U.S. government purges its records, and it could impact your company’s I-9 compliance efforts. Here’s what you need to know.

As of January 2, 2020, employers will not have access to E-Verify records that were created more than ten years earlier. Under the Immigration Reform and Control Act of 1986, all U.S. employers are required to verify the employment eligibility of all new hires by completing the Form I-9. Employers must then retain original I-9 forms for three years after the date of hire, or one year after the date employment ends, whichever is later. E-Verify is an Internet-based program that compares the information provided by employees on the Form I-9 to DHS and Social Security Administration records, providing employers with verification of an employee’s work authorization status. As a result of the upcoming purge, E-Verify users will no longer have access to records that are ten years old or older. The data purge is being conducted to comply with the National Archives and Records Administration's retention and disposal schedule to minimize security and privacy risks associated with retaining personally identifiable information.

An employer that undergoes an I-9 audit or finds itself under investigation in the future may be able to claim as an affirmative defense that it successfully received a “work authorized” result from E-Verify for an employee at the time of hire, but who is later identified as unauthorized.  Once USCIS has disposed of the E-Verify records, however, the employer has only its own archives to support this defense.

USCIS recommends that employers annotate Forms I-9 with the E-Verify case verification number and retain the Historic Records Report with the corresponding forms while the historical records are still available.  The agency itself will retain E-Verify records associated with any current ongoing investigations.  To retain E-Verify case information, an employer may download and save the Historic Records Report, which includes:

• Company name and location;
• Initiated date and verification case number;
• Employee name and date of initial resolution;
• Date of additional resolution and final status; and
• Case closure date and case closure description.

Employers have until Dec. 31, 2019, to download case information from the Historic Records Report if they want to retain information about these E-Verify confirmations.  Employers should download the Historic Records Report from E-Verify prior to the end of this calendar year, for each employee or former employee whose work authorization was confirmed via E-Verify.  For more information on the Historic Records Report, visit www.e-verify.gov/instructions-to-download-historic-records-reports-in-e-verify/instructions.  If you have questions regarding this process, or need additional information regarding their obligation to retain certain I-9 information, please contact one of Martin Pringle’s employment law attorneys.