Photocopies and the Form I-9

While making photocopies of documentation presented by employees to satisfy Form I-9 requirements is permissible, it is not required. Employers that choose to make photocopies of documentation must do so consistently and apply the practice to every employee, without regard to citizenship or national origin.

Making copies of the documents presented does not excuse employers from filling out Section 2 of the form. Employers must still fully complete the I-9. The Unites States Citizenship and Immigration Services recommends that employers that choose to retain copies of employees' documentation keep those documents together with employees' individual Forms I-9.

Copies that are scanned and stored electronically must be retrievable consistent with DHS's standards on electronic retention, documentation, security, and electronic signatures for employers and employees.

While there are benefits to making photocopies of employees' documentation (employers can easily check to make sure that the information on the Form I-9 is accurate), there are also some potential drawbacks to this practice. For instance, if an employer has made an error in transferring an employee's document information onto the Form I-9, the mismatch in data will be preserved by the practice of making photocopies of employee documentation. If audited, this could be an issue that results in fines, whereas such an error by an employer who does not make photocopies may go unnoticed by a federal auditor.

Another area of risk comes with the retention of additional paperwork. Employers who make photocopies of employee documentation must retain the copies with employees' Forms I-9. More paperwork to retain creates more risk of losing or misplacing portions of the Form I-9, and again, creates an additional risk for fines in case of a federal audit.

While employers who do not participate in E-Verify are not required to make photocopies of employees' Form I-9 documentation, participants in the E-Verify program must make photocopies of an employee's Employment Authorization Document or Permanent Resident card when these forms of documentation are provided for Section 2 of the Form I-9. The use of these documents automatically activates a photo screening tool in E-Verify, so employers will need the photocopies of these two types of documentation to match the photo on the employee's document to the official photo displayed by E-Verify.

Note that this requirement to make photocopies of certain documentation for E-Verify does not invoke a requirement to copy all I-9 documentation. The rule to copy all I-9 documentation or none is in place to help employers avoid discrimination, which could occur if an employer were in the habit of photocopying only the documentation of employees who appeared to be non-U.S. citizens or only documentation that provided temporary work authorization.

Copying certain documentation to comply with E-Verify rules does not put the employer in danger of appearing discriminatory, since the employer is following specific rules about what documentation to copy. Therefore, if the employer is making copies of only the two documents as required by the E-Verify rules and doesn't normally make copies of Form I-9 documents, the employer is not required to begin photocopying all I-9 documentation.