The Department of Homeland Security announced a final rule this week that makes minor changes to the June 2006 interim rule concerning electronic storage of I-9 forms. The final rule is effective August 23, 2010. Please note that this final rule concerns only the preparation and storage of the actual I-9 forms. The online E-Verify system, which some employers may be using, is a separate system that employers may use in addition to, but not instead of, the basic I-9 process.
The June 15, 2006 Interim Rule
Since June 15, 2006, employers may prepare, sign and store I-9 forms electronically. The regulation does not specify any particular format or software. Employers opting for electronic preparation and storage of I-9’s simply must follow the regulatory guidance. In particular, the electronic system must be accurate and reliable, have security features to prevent unauthorized or accidental changes to the documents, provide for periodic quality assurance self-audits, have a searchable indexing system and allow for high-quality image viewing and printing. The electronic signature feature must affix the signature to the document at the time the form is prepared and contain a record verifying the signatory’s identity.
The July 22, 2010 Final Rule
The final rule makes only a few changes to the June 2006 interim rule:
- Resolves a prior inconsistency in the timing to review the employee’s documents and complete Section 2 of the I-9 form. Previously, there were references to "within three business days of the hire" and "within three days of the hire." This made it unclear whether the applicable period is business or calendar days. The final rule clarifies that the employer must review the employee’s documents and complete Section 2 of the I-9 within three business days of the hire. (This is interpreted to mean that if the employee starts Monday, the employer must complete Section 2 by the end of the employee’s shift on Thursday.)
- Requires an electronic storage and retrieval system to provide an audit trail of only the original creation and all subsequent modifications to the I-9 forms. The interim rule also required an audit trail of every time someone accessed or viewed the I-9.
- Requires the employer to provide a printed copy of the electronic I-9 transaction only if the employee requests one. The interim rule required the employer to provide a copy regardless of whether the employee requested it.
Existing I-9 Laws Still Apply
Employers are reminded that the basic I-9 process remains the same. Employers must use the I-9 Form to verify the work authorization of any employee hired after November 6, 1986. Major I-9 protocols applicable to employers include:
Employers must maintain I-9 forms for all current employees. Employers also must continue to keep the forms until the later of three years after the date of hire or one year after termination.
Employers cannot specify which document(s) an employee provides to satisfy the I-9 requirement. Rather, the employee alone must review the lists of acceptable documents and choose which ones to present to the employer when preparing the form. Instructing a new employee to provide particular documents could lead to a discrimination allegation and lawsuit based on “document abuse” under the I-9 regulations.
I-9 regulations do not require employers to make or maintain copies of the documents that employees present. Rather, the regulations simply instruct that, if an employer makes copies of one employee’s documents, it must make copies of all employees’ documents. Maintaining copies of I-9 documents provides a record of the I-9 process and allows for correction of errors that may have been made when completing the I-9 form. For example, if an employer does not complete Part 2 of the form but makes copies of the documents that the employee presented, the employer could later correctly complete the form. In such a situation, the employer must initial and currently date any corrections.
The Social Security Administration (SSA) and Department of Homeland Security (DHS) offer free voluntary programs to assist employers in verifying information presented by employees as part of the I-9 process. SSA’s Social Security Number Verification Service allows employers to register online and verify the names and Social Security numbers of new hires. Similarly, DHS operates the E-Verify program, through which employers sign a “Memorandum of Understanding” with DHS and then use an online-based system to verify the authenticity of employment authorization documentation for new employees. Neither system is perfect, but both offer an additional “check” for employers who want to take extra measures to ensure the validity of the documents they review through the I-9 process. Also, both systems specifically prohibit their use to pre-screen candidates being considered for employment. Employers may verify the information only after the candidate accepts an offer of employment.
Employers must update I-9 forms when certain documents expire. Employees with I-94 Departure Records, Employment Authorization Documents and academic-based employment authorization (such as Curricular or Optional Practical Training), for example, typically must provide new documents upon expiration of their current work authorization. The employer must complete Section 3 of the I-9 form when re-verifying work authorization. In cases where a more recent version of the I-9 form is available, the employer needs to complete Section 3 of the latest version and attach it to the existing I-9. Employers do not need to re-verify expired permanent resident cards (“green cards”), regardless of whether they have a 10-year or two-year validity.