To copy or not to copy? Rethinking a longstanding I-9 compliance practice

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.