DHS Publishes Final Rule On The Electronic Signature And Storage Of Form I-9

DHS Publishes Final Rule On The Electronic Signature And Storage Of Form I-9

The U.S. Department of Homeland Security (“DHS”) has published a final rule on the electronic signature and storage of the Form I-9, located at 8 C.F.R. Part 274a. The final rule, which permits employers to complete, sign, scan, and store the Form I-9 electronically as long as certain standards are met, became effective August 23, 2010.

Section 274A of the Immigration and Nationality Act requires all U.S. employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of employees hired to work in the United States after November 6, 1986. To comply with the law, an employer, or a recruiter or referrer for a fee, is responsible for the completion of a Form I-9, Employment Eligibility Verification for each new employee, including United States Citizens. The completed Form I-9 is not filed with the DHS, but instead must be retained by the employer, recruiter, or referrer. Employers are required to retain such forms until the expiration of 3 years from the date of hire or 1 year from the date of termination, whichever is later. Recruiters and referrers for a fee must retain each Form I-9 for three years after the date of hire. The failure to properly complete and retain each Form I-9 may result in civil monetary penalties.

In June 2006, the DHS issued an interim rule permitting electronic completion, signature, and storage of the Form I-9 as a means of reducing the costs of compliance and increasing efficiency in maintaining and searching such employment records. The final rule makes minor modifications to the interim rule, and clarifies some ambiguities contained therein. The primary changes implemented by the final rule are as follows:

• Employers must complete a Form I-9 within three business (not calendar) days of the date employment begins;

• 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 a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected;

• Employers must store Form I-9s in a system “that permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system,” but are no longer required to ensure that the storage system is searchable by every data element as required by the interim rule; and

• Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

The final Electronic Signature and Storage of Form I-9 rule responds to public comments received on the interim rule promulgated in 2006, and simply clarifies the regulatory requirements for electronically signing and storing Form I-9s. The final rule does not change the content of the Form I-9 or the list of acceptable verification documents.