Do I Need to Keep My Employees' Form I-9 Separate From the Employees' Personnel Files?

No, there is no law that requires you maintain the I-9 in a separate file. However, it is a good practice to do so. Why? There are three main reasons:

First, the Department of Homeland Security's ICE division may investigate and audit your company's I-9 compliance. Audits have increased significantly the past several years and the likelihood that your company gets audited have increased, and the fines can be excessive, particularly considering the seemingly simple nature of complying with the rules regarding the I-9. If your company is ever audited by the federal government you will need to have 3 days to put together all of the I-9s for your current and certain former employees. In that time you need to review the I-9s yourself and do damage control, but that may not be possible if you're digging around personnel files looking for the I-9s.

Second, if you are raided by ICE it will likewise want those I-9s. If the I-9s are in the personnel files, then you would have the federal government going through personnel files seeing information on your employees that you potentially don't want them to see.

And finally, the I-9 has a different retention period than all other documents. While most employment records have a retention period of 1-3 years, the retention period for the I-9 is not always easy to calculate. Meaning, you do not want to accidentally put it into a pile of documents to be destroyed when it might be premature to do so.


Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.