Homeland Security Department Revises Rule on Electronic Processing and Storage of I-9 Forms

The Department of Homeland Security has issued a final rule to revise the regulations regarding completion and retention of I-9 forms. The revision gives employers the discretion to sign and retain I-9 forms electronically.  In June 2006, DHS issued an interim final rule that permitted electronic signature and storage of I-9 forms.  The interim rule amended DHS regulations to permit employers to complete, sign, scan and store the I-9 forms electronically, including existing I-9 forms.  In this final rule, DHS made minor modifications to clarify certain provisions.  Specifically, employers:

• Must complete a form I-9 within three business (not calendar) days;
• May use paper, electronic systems, or a combination of paper and electronic systems;
• May change electronic storage systems as long as the systems meet the performance requirements of the regulations;
• 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; and
• 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 rule also makes "technical and conforming" amendments to the regulations including the requirement that an electronic I-9 storage system be searchable "by any data element," requiring only an indexing system that "permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system." The final rule is effective August 23, 2010. Complete text of the final rule can be found in the July 22, 2010 Federal Register. More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9 and in the Labor and HR Topical Resources section of the AGC website.