The Department of Homeland Security (DHS) is allowing employers much more flexibility in the electronic completion, signing and storing of Form I-9, Employment Eligibility Verification.
An interim rule in 2006 permitted employers to electronically sign and store the form. After considering public comments, DHS recently published a final rule, effective Aug. 23, 2010, with the following guidelines:
- Employers must complete a Form I-9 for each employee within three business days (not calendar days) of the date on which employment begins.
- Employers may use paper, electronic systems or a combination of the two to complete a Form I-9. Employers are required to retain only those pages of the form on which the employer or employee enters data; they need not retain the instruction pages.
- Employers may implement an electronic storage system for the management of Form I-9, provided that the system includes indexing capabilities that allow for the identification and retrieval of relevant records. Additionally, the system must be fully accessible.
- Employers are not required to maintain an audit trail of every instance in which an electronic Form I-9 is viewed or accessed. They must update the audit trail only when the form is created, completed, updated, modified, altered or corrected. The audit trail should include the date of access, the identity of the individual who accessed the electronic record and the action taken.
- Employers may provide confirmation, such as a printed copy of the electronic record, of a Form I-9 transaction, but such confirmation is not required unless the employee requests it. If an employee does request confirmation, the employer must provide it within a reasonable period of time after the transaction.
Employers should be aware that DHS has significantly increased its use of I-9 audits over the past year. This has resulted in large civil penalties, as well as federal criminal charges in some cases, for employers who were found to have violated U.S. immigration law.
—David Crass and Eric Hobbs, Michael Best Friedrich LLP