USCIS has announced that on January 2, 2020 it will dispose of its E-Verify records for cases that are more than 10 years old. Specifically, USCIS will be destroying its E-Verify records that were created on or before December 31, 2009. After January 2, 2020, employers will no longer be able to access USCIS’ E-Verify records for the destroyed cases. Employers wishing to download a copy of USCIS’ E-Verify reports for cases that are subject to disposal should download those reports from the E-Verify website by December 31, 2019.
If an employer is ever subject to an I-9 Audit or an ICE investigation regarding the employment of unauthorized workers, the employer can assert an affirmative defense by demonstrating that it received a “work authorized” confirmation from the E-Verify system for the employee in question. It is a well-established best practice that employers should make a note of an employee’s E-Verify case verification number on the employee’s Form I-9 and attach a copy of the E-Verify confirmation results received at the time that the E-Verify case is first created. However, once USCIS has disposed of its own E-Verify record, the employer will be left with only the case number and a copy of the downloaded E-Verify confirmation report to support this affirmative defense. In order to have proof that USCIS actually created an E-Verify case for the employee in question, employers should take the precautionary additional step of downloading and archiving a copy of USCIS’ Historic Records Report for the employee. Further, we recommend that employers adopt a policy of downloading Historic Record Reports at the end of each calendar year in order to avoid any E-Verify cases being destroyed without first obtaining a record of their existence.