Employers Now Have Increased Flexibility in Managing Forms I-9 Electronically

The Department of Homeland Security (“DHS”) adopted an interim rule in 2006 that permitted employers to electronically sign and store I-9 Employment Eligibility Verification Forms. After considering public comments related to this interim rule, DHS recently published a final rule that will afford employers greater flexibility in completing, signing, and storing Forms I-9 electronically. Effective August 23, 2010, the final rule provides the following guidance related to the management of Forms I-9: 

• 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 paper and electronic systems to complete a Form I-9. Employers are required to retain only those pages of the Form I-9 on which the employer or employee enters data; employers need not retain the Form’s instruction pages.
• Employers may implement an electronic storage system for the management of Forms I-9, provided that the system includes indexing capabilities that allow for the identification and retrieval of relevant records maintained by the electronic system. Additionally, employers must ensure that they retain existing Forms I-9 in a system that remains fully accessible.
• Employers are not required to maintain an audit trail that records every instance in which an electronic Form I-9 is simply viewed or accessed. Rather, employers must update a Form I-9’s audit trail only when a Form I-9 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 particular action taken.
• Employers may provide confirmation, such as a printed copy of the electronic record, of a Form I-9 transaction to the affected employee, but such confirmation is not required unless the employee requests it. If an employee does request confirmation of a Form I-9 transaction, the employer must provide this confirmation to the employee within a reasonable period of time of the transaction. 

Employers should be aware that, over the last year, DHS has significantly increased its use of I-9 audits as an immigration enforcement measure. This increase in I-9 audits 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 laws.