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.