Since the Immigration Reform and Control Act (IRCA) was enacted in 1986, employers have been required to verify the identity and work authorization of every new hire using Form I-9. But one question has sparked ongoing debate: Should employers copy the documents that employees present during the I-9 process?
Two Schools of Thought on I-9 Copying
For years, many employers—including our firm—advised copying. The rationale was practical:
- It showed good faith that the employer reviewed valid documents.
- It helped defend against claims that documents were never submitted.
- It made corrections and internal audits easier.
- It provided a fallback when original documents were no longer available.
In an imperfect world where I-9s are often completed quickly or by nonexperts, copying added a layer of protection.
Why That Advice is Changing
Federal law has never required document copying unless the employer participates in E-Verify (and then, only for certain documents). But in recent years, U.S. Immigration and Customs Enforcement (ICE) and other federal agencies have intensified their scrutiny of I-9 practices. Inconsistent document handling (copying for some employees and not others) can raise red flags under the antidiscrimination provisions of the Immigration and Nationality Act.
Even when copies exist, they don’t always help. Photocopies may not clearly show what was reviewed at the time of hire, and relying on them can lead to confusion, overconfidence, or worse: legal exposure.
The Buona Forchetta Example: Copies as a Liability
The recent ICE raid at the restaurant Buona Forchetta in San Diego illustrates how document copies can be turned against employers. One key issue in the case was whether the documents presented were ones a reasonable person would have accepted.
With originals no longer available, ICE focused on the copies. Ironically, the very records kept in the name of compliance helped build the case against the employer.
Status Losses Complicate I-9 Oversight: Reverification is Key
Adding to the complexity, more than half a million employees have lost their work authorization in the past year because the expiration of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) and temporary protected status (TPS) programs. Employers are often overwhelmed trying to track employees across dozens of work authorization categories.
During an audit, if an employee who was once verified is found to have lost status and the employer failed to reverify, the liability increases—especially if outdated copies masked the issue. It’s far safer and more compliant to skip copying altogether and rely instead on timely reverification.
What Should Employers Do?
While some still view copying as a useful safeguard, the growing risks of inconsistency, confusion, and enforcement scrutiny are leading many to rethink that position.
At our firm, we’ve reassessed our guidance. As of June 30, we advise clients not to copy documents presented for Form I-9, unless legally required under E-Verify or a specific contractual obligation.
Important: If you’ve previously copied documents, do not destroy them. Federal regulations (8 C.F.R. § 274a.2(b)(3)) require that any copies made be retained with the corresponding I-9. Discarding them could itself be a compliance violation.
Why the Change?
I-9 compliance is a moving target. Employers must continuously adjust to changing enforcement trends and immigration policies. To reduce risk, we recommend that you:
- Review only original, unexpired documents when completing Form I-9;
- Apply policies consistently to all employees;
- Conduct internal or third-party I-9 audits; and
- Establish a clear plan to respond to audits, tips, no-match letters, and error notices from agencies such as ICE, the Social Security Administration (SSA), or the IRS.
Consistency is King
Regardless of whether you copy, the most important principle is consistency. Uneven practices can create the appearance of discrimination or negligence. As enforcement becomes more aggressive and immigration policy continues to evolve, the consequences of a misstep have never been greater.
Jacob M. Monty is a partner with Monty & Ramirez, LLP, in Houston. You can reach him at jmonty@montyramirezlaw.com.