Electronic Storage of I-9 Forms
August 6, 2010
by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010
Employers may complete, sign, scan, and store Employment Eligibility Verification forms (Form I-9) electronically – including existing I-9 forms – as long as certain performance standards for the electronic system are met, under a revised rule issued by the Department of Homeland Security (DHS) on July 22, 2010.
I-9 Forms – The Immigration and Nationality Act (INA) requires all U.S. employers to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986. To comply with the law, an employer is responsible for the completion of an I-9 form for each new employee, including U.S. citizens.
Retention Requirement – Employers are required to retain an I-9 form in their own files for "three years after the date of hire of the employee or one year after the date that employment is terminated."
History of Electronic Storage – In June 2006, DHS published an interim final rule to permit electronic signature and storage of the I-9 form.
Summary of Changes – The DHS, on July 22, 2010, made minor modifications to its electronic signature and storage rules to clarify certain provisions that:
- Employers must complete an I-9 form within three business (not calendar) days;
- Employers may use paper, electronic systems, or a combination of paper and electronic systems;
- Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
- Employers need not retain audit trails of each time an I-9 form is electronically viewed, but only when the I-9 form is created, completed, updated, modified, altered, or corrected; and
- Employers may provide or transmit a confirmation of an I-9 form transaction, but are not required to do so unless the employee requests a copy.
Time to Complete Form I-9 – The DHS' revised rule clarifies that employers must complete Section 2 of the I-9 form "by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins."
Electronic Storage Options – Employers may use paper, electronic systems, or a combination of the two to store I-9 forms. However, an employer must produce a reasonable facsimile or copy of the I-9 form. Employers may change electronic systems as long as such systems meet the requirements of the DHS’ revised rule.
- Only the pages of the I-9 form containing employer and employee-entered data need be retained. Other pages of the current form are instructions for completing the I-9 form and need not be retained by the employer.
- Employers may, but are not required to, copy or make an electronic image of a document used to comply with the requirements of the INA.
- I-9 forms and verification documentation may be stored in a separate I-9 file or as part of the employee’s other employment records.
Audit Trail Requirements – Whenever an electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record must be created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.
- In its revised rule, the DHS deleted the requirement that the electronic storage system be searchable by any data element.
Employee Receipt – DHS amended it rule to require employers to provide or transmit a printed confirmation of an electronic transaction only if an employee requests it. In addition, the DHS removed the language requiring the employer to provide the confirmation at the time of the transaction.
- If, however, the employee requests confirmation, it is reasonable for the employer to be required to give the employee a copy of the information provided within a reasonable period of time.
- Providing the option of electronic preparation and storage does not in any way alter the requirement that the employer physically examine by the employee in the presence of the employee prior to completing the I-9 form.
Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.
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