Electronic Signature and Storage of I-9 Forms
July 3, 2006
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006
Employers may now complete, sign and store their required Employment Eligibility Verification I-9 Forms electronically, as long as certain standards are met, under a new interim rule issued by the Department of Homeland Security (DHS) that took effect on June 15, 2006.
Employment Eligibility – Under federal immigration law, employers are required to verify the employment eligibility and identity of all employees hired to work in the United States after 1986. To comply with the law, an employer is responsible for the completion of the Employment Eligibility Verification form (known as Form I-9) for all employees, including United States citizens.
I-9 Form – The I-9 form is made available to the public in paper and electronic form, and is available on-line as a fillable – printable (.pdf) form. Employers can retrieve the form on-line, type the required information into it for a prospective employee, and print it.
Record Retention – Employers are required to retain I-9 forms for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later.
Existing Methods of Retention – The I-9 form may be retained in paper, microfilm, or microfiche form. Since April 29, 2005, employers have also been able to retain I-9 forms in electronic format. Forms created between that date and June 15, 2006 (the effective date of the new DHS rule) need not comply with the new rule.
Not Required to Maintain Electronically – An employer that is currently complying with the I-9 form recordkeeping requirements is not required to take any additional or different action to comply with the new rule. The new rule offers an additional option, and does not require any employer to use an electronic recordkeeping system.
New, Optional Method – Under the new rule, employers are permitted to: (1) complete, sign and store I-9 forms electronically; and (2) electronically scan and store existing I-9 forms, as long as certain standards are met, including:
- Indexing System – A retrieval system that includes an indexing system that permits searching of an I-9 form by any data element.
- Legibility – All documents reproduced by the electronic retention system must exhibit a high degree of legibility and readability when displayed on a video display terminal. In addition, the electronic retention system must have the ability to reproduce legible and readable hardcopies.
- Controls – Reasonable controls must be established to ensure the integrity, accuracy and reliability of the electronic storage system, as well as to prevent and detect unauthorized creation, alteration or deletion of I-9 forms. In addition, an effective security program must be implemented.
- Electronic Signatures – Under the interim rule, electronic signatures can be accomplished using various technologies including, but not limited to, electronic signature pads, Personal Identification Numbers (PIN), biometerics, and “click to accept” dialog boxes.
- Advantages of New Method – By completing and/or storing I-9 forms electronically, some employers may be better able to self-audit I-9 forms in order to detect and correct errors. For example, an electronic process could include prompts that preclude the user from completing the rest of the I-9 form until an acceptable response is provided. Employers could also create a reliable system electronically to re-verify an employee’s employment authorization when it is about to expire. Electronically retained I-9 forms are also more easily searchable. An advantage to the government is that, when conducting audits, DHS will be able to receive I-9 forms electronically, rather than using staff resources to physically appear at a worksite.
- Current or Combination of Methods – For some employers, particularly small employers, retaining the paper I-9 form may continue to be the most cost-effective and efficient storage method. The paper I-9 form has the advantage of recording the unique signature of the employee and of the employer representative. Additionally, employers can utilize a combination of paper and electronic methods for fulfilling the I-9 form requirements. For example, an employer can complete the paper I-9 form and use a scanner to retain electronically. Conversely, an employer can choose to complete the I-9 form electronically (on-line) and retain the printed (paper) form.
Time Spent Completing I-9 Forms - DHS estimates that there are 78 million I-9 forms completed annually, in either paper or electronic format and projects that about half of all I-9 forms will involve some method of electronic generation or retention. DHS has estimated that it takes 9 minutes to gather the required evidence to complete the paper I-9 form and an additional 4 minutes for employer verification, filing and storage. According to DHS, employers utilizing at least a partial electronic process for retention of the I-9 form should save a minimum of one minute of burden time per form.
Bottom Line - The electronic completion and storage of I-9 forms may make sense for some employers, but not for others.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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