Electronic Signature and Storage of your Company’s I-9 Forms – Is it Just a Matter of Time?

Here at GT we are often asked the question, “Can my company sign and store our I-9 forms electronically?” The answer is currently no. Unfortunately, the regulations do not anticipate the electronic sophistication of which many companies are currently capable.

Currently, the Employment Eligibility Verification Form I-9 must be retained by an employer or a recruiter or referrer for a fee for the following time periods:

1. In the case of an employer, three years after the date of the hire or one year after the date the individual's employment is terminated, whichever is later; or
2. In the case of a recruiter or referrer for a fee, three years after the date of the hire.

Under current regulations, at the time of inspection Forms I-9 must be made available in their original form or on microfilm or microfiche at the location where the request for production was made. If Forms I-9 are kept at another location, the person or entity must inform the officer of the USCIS, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor of the location where the forms are kept and make arrangements for the inspection. Inspections may also be performed at a USCIS office.

Further, the following standards apply to Forms I-9 presented on microfilm or microfiche submitted to an officer of the USCIS, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor: Microfilm, when displayed on a microfilm reader (viewer) or reproduced on paper must exhibit a high degree of legibility and readability. For this purpose, legibility is defined as the quality of a letter or numeral which enables the observer to positively and quickly identify it to the exclusion of all other letters or numerals. Readability is defined as the quality of a group of letters or numerals being recognizable as words or whole numbers. A detailed index of all microfilmed data shall be maintained and arranged in such a manner as to permit the immediate location of any particular record. It is the responsibility of the employer, recruiter or referrer for a fee:

1. To provide for the processing, storage and maintenance of all microfilm, and
2. To be able to make the contents thereof available as required by law.

The person or entity presenting the microfilm is required to make available a reader-printer at the examination site for the ready reading, location and reproduction of any record or records being maintained on microfilm. Reader-printers made available to an officer of the USCIS, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor shall provide safety features and be in clean condition, properly maintained and in good working order. The reader-printers must have the capacity to display and print a complete page of information.

Many employers accurately argue that microfilm and microfiche are outdated and seldom used - having been replaced by, among other things, scanners and the storage of documents in Portable Document Format. While this is obviously true, the simple fact is that the law has not caught up to the advancements in the storage of this type of data. Well, perhaps until now.

A new Bill was introduced in the House of Representative on May 6, 2004 which would allow for the electronic signature and electronic storage of the I-9 Form. Although current regulations do not anticipate execution of the I-9 form in any manner other than paper and ink and do not allow for storage other than in original form or on microfilm or microfiche, this new Bill addresses the logical evolution of the signature and storage of the I-9 form. Indeed, many banking and commercial transactions utilize electronic signatures; and the “Electronic Signatures in Global and National Commerce Act” or “E-Sign Act” which took effect on October 1, 2000 gives electronically transmitted signatures the same legal standing as signatures written with pen and paper. Additionally, many OSHA and IRS forms can be signed and stored electronically.

While it appears the electronic signature and storage of the I-9 Form is in the near future, companies and employers should continue to store and sign their I-9 forms according to current regulations.

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