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I-9 E-Verify Immigration Compliance

Colorado Repeals Employment Verification Requirement

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By Bruce Buchanan, Sebelist Buchanan Law

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In a rare move that is helpful to employers in immigration compliance, Colorado repealed its requirement that its employers have to complete and maintain a separate affirmation form besides the I-9 form and maintain copies of documents presented for employment verification. The repeal is effective on August 10, 2016.

As we all know, the Federal law, Immigration Control and Reform Act, does not require an employer to copy and retain documentation presented for employment verification. However, that does not mean that it is not a good idea to copy and retain such documentation but that is always a hot debate between immigration compliance attorneys. In most instances, I favor copying and retaining the documentation for a variety of reasons.

This repeal is great news for Colorado employers because employers should not have to essentially complete duplicate forms for the same purpose.

The new law is silent on whether an employer must retain previously completed affirmation forms and I-9 documentation. Seemingly the best approach is to retain those documents for current employees and destroy the affirmation forms when an employee is terminated. As for retention of I-9 documentation, an employer needs to be consistent in whether it retains this documentation. Thus, it is probably best to keep the existing documentation until the employee is terminated and then apply the “purge” rule – retain the I-9 and documentation for three years from the employee’s date of hire or one year from the employee’s termination, whichever is later.

As for new employees hired as of August 10, 2016, a company could implement a new rule eliminating the retention of the documentation. If one does so, make sure the rule is in writing, preferably in your immigration compliance policy (if you don’t have one, you should retain competent immigration compliance counsel to draft one) and be consistent in its use. Lack of consistency, if based on citizenship status or national origin could lead to a complaint with the Office of Special Counsel (OSC) or the EEOC.

With Colorado’s repeal, Tennessee becomes the only state that may require retention of an I-9 type document. Under current Tennessee law, one must retain one such document or use E-Verify. As of January 1, 2017, E-Verify will become mandatory for all employers with 50 or more employees but those employers with less than 50 employees will still have to use E-Verify or retain one I-9 type document.

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