October 28, 2004
Congress Passes Legislation Permitting Electronic Completion and Storage
of I-9 Forms
On October 11, 2004, Congress passed legislation amending section 274A
of the Immigration and Nationality Act to improve the process for verifying
an individual's eligibility for employment. The legislation allows employers
the option of completing and storing I-9 employment verification forms electronically.
The bill is currently awaiting the President’s signature. Once the President
signs the bill, the new law will become effective on the date that the Department
of Homeland Security (“DHS”) promulgates final implementing regulations
or 180 days after signing, whichever comes first.
The Immigration Reform and Control Act ("IRCA") of 1986 required all
U.S. employers to document that all employees hired after November 6, 1986,
are eligible to work in the United States, as well as confirm their identity
with the information on their employment authorization documents.
IRCA mandated that employers use Form I-9 in conducting employee verification.
The current law allows for only three forms of record retention for I-9
forms: paper, microfilm or microfiche. This bill simply adds “electronic
format” to this list of methods for document retention. Employers may continue
to use the previously accepted forms of record retention.
The bill also allows for, but does not mandate, the use of electronic
signatures by the employee and the employer on the I-9 document. This would
allow employers that wish to have the I-9 verification process completed
on line or on a computer to do so. Keep in mind that the regulations still
mandate that an employer view the original documents presented by the employee
to prove identity and work authorization, so the process could not entirely
be completed remotely.
Of particular interest to large employers is the ability to transfer
existing paper, microfilm, or microfiche records to electronic format once
the law takes effect. It is important to note that the retention requirements
for previously completed I-9 forms, which must be retained by an employer
for one year after the date of termination of the employee, or three years
from the date of hire, whichever is longer, will not change.
The new legislation does not specify standards for electronic storage
or signature. Presumably, DHS will issue these standards in their regulations.
In addition, the legislation does not change any of the existing regulations
governing audits of I-9 forms by the government. However, DHS may change
its regulations to permit enforcement agents to request and view electronic
versions of the I-9 forms, if they are stored in that fashion by the employer.
Thereby, eliminating the need to print and present paper copies of the forms
to agents. Presumably, electronic storage and indexing would make it easier
for employers to meet document production demands during an investigation,
and limit disclosure to only those documents under review.
For further information regarding the new electronic I-9 legislation
and its potential impact on your company, please contact Greenberg Traurig’s
immigration group. In addition, we will provide you with additional information
as it becomes available.