As of Jan. 1, 2015, the government started deleting E-Verify records that were created on or before Dec. 31, 2004. This action was initiated in accordance with the National Archives and Records Administration (NARA) records retention and disposal schedule. USCIS now disposes of E-Verify records that are over ten years old every January 1st. Employers are reminded to take steps to update their compliance practices to include an annual E-verify record report for retention purposes.
The importance of taking this measure can be invaluable in the case of an I-9 audit. An employer that must undergo an I-9 audit may claim as an affirmative defense that when the E-verify system was used, the employer successfully received a “work authorized” result from E-Verify for a new hire whom Immigration and Customs Enforcement (ICE) now may be identifying as unauthorized for employment in an audit. Once USCIS has disposed of the E-Verify records, the employer has the burden of proving the E-verify verification record from its own archives to support its defense.
While E-Verify recommends that employers annotate Form I-9 with the E-Verify case verification number, we recommend that employers take the additional step of retaining the Historic Records Report with the corresponding Form I-9. Adding this compliance best practice is most significant for federal contractors and vendors, as it is federally mandated that they participate in the E-Verify program. Likewise, any state that requires all employers to use E-Verify, those companies should be mindful of the annual E-verify record purge. For guidance on downloading the Historic Records Report, see the “Questions and Answers” and “Instructions to Download Historic Records Reports in E-Verify” on the E-Verify website.