This morning, the Washington Post reported that Fairfax County Schools in Virginia appears to have shredded the original Form I-9 taken for their employees. This is yet another example of how compliant use of online I-9 systems can be confusing and therefore written policy, procedure and regular training for all users is an absolute must. For many types of forms used by businesses, it is common practice to scan a document and then shred the original to reduce the labor and cost associated with maintaining hard-copy files. Generally, electronic files are seen as far more reliable, and even easier to access, than hard copy. Therefore it is easy for an employee to assume, that all forms within an organization are handled in the same manner.
Unfortunately, the recordkeeping rules for the Form I-9, are not based on the standard operating procedures for businesses. The retention rules require that the employer keep the original form, regardless of whether or not a copy is maintained in an online system, so that it may be produced immediately for inspection for the duration of employment. In addition ,for terminated employees, original forms must still be kept ready for inspection for the longer of three years from their date of hire or one year from their termination date.
When recordkeeping rules for one form differ significantly from all the other forms maintained by an organization, there is a significant risk, that those responsible for recordkeeping may be unaware, forget, or make incorrect assumptions regarding recordkeeping unless the organization adopts a very clear policy and procedure with regard to the form's maintenance and regularly trains all involved with maintenance of the form.
The Washington Post explains that the recordkeeping error was found during an internal audit. Unfortunately for Fairfax County Public Schools, they must make all results of internal audits public. There is no requirement within the Form I-9 rules to notify ICE of any deficiencies found during an internal audit. Generally, an employer, upon finding deficiencies after performing an internal audit, would use those results to take appropriate mitigating action within their organization, and note the issue as well as all actions to prevent further problems and liability so that they are prepared in the event of a government audit.
The regulations for the Form I-9 can be confusing, despite the more readable language and additional pages of instruction, and a lot of employers make mistakes with even the most straightforward recordkeeping and completion rules. It is always best to review your processes and procedures with your immigration attorney.