In July, the U.S. Department of Homeland Security (DHS) issued two sets of rather inconsistent statements regarding I-9 Compliance.  The DHS announced a new “interpretation” of the I-9 Employment Verification regulations which allows employers four days, rather than the previous limit of three days, for completion of the Form I-9 after the start of employment for new hires.  For those employers who use E-Verify, the same four-day deadline will apply.  While the announcement was phrased as a clarification of existing policy, it represents a surprising new interpretation of a rule in place for over 20 years.

Meanwhile, upon issuing the final rule on I-9 electronic storage, the DHS reiterated the three-day requirement.  On August 22, 2010, final regulations will go into effect regarding how employers may use electronic systems to complete and store their I-9 Forms.  The principal changes will be as follows:

• Employers must complete Section 2 of the Form I-9 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.
   
• The audit record-keeping system has been modified.

In light of July’s DHS guidance regarding the change from the three-day rule to a four-day rule, there remains confusion as to how the DHS will implement the new regulation concerning electronic storage.