United States: DHS Finalizes Electronic I-9 Regulation
The Department of Homeland Security
The Department of Homeland Security is finalizing the legal requirements for employers who wish to perform the Form I-9 Employment Eligibility Verification process electronically.
On July 22, 2010, the Department of Homeland Security (DHS) will publish the regulation finalizing the requirements for employers who wish to electronically complete, sign, and store the Form I-9 Employment Eligibility Verification instead of completing and retaining the paper forms. Congress first authorized the use of electronic I-9s in October 2004. A DHS interim final regulation on electronic I-9s was promulgated in June 2006 that had the force of law and took effect immediately. The interim final regulation provided the standard for data retention and retrieval, electronic signature authenticity, and data security and integrity.
DHS accepted public comments to the interim regulation for 60 days post publication. The final rule, to be published on July 22, 2010, reiterates and clarifies some of the requirements in the interim final regulation, and amends other provisions in response to public comments received in 2006. For example, the final rule reaffirms that employers will not be required to use a specific technology to complete and store I-9 information, so long as the system they use ensures accessibility and they are able to produce a reasonable facsimile or copy of the I-9. The final rule will also relax the audit trail requirement from the interim rule so that employers no longer have to keep records of when the information is accessed or viewed. Instead, an audit trail will only need to include information on the the initial completion and any subsequent modification to the I-9. The final rule will also relax the interim rule’s requirement to provide a transaction record to the employee at the time the electronic I-9 is created. Under the rule to be published tomorrow, the employer may “provide or transmit a confirmation of the transaction only if an employee requests it . . . within a reasonable period of time.” Finally, the final rule will remove the mandate that the electronic storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”
Fragomen attorneys will monitor closely any further guidance from DHS on the promulgation of the final rule. In the meantime, please contact the Fragomen professional with whom you work if you have any questions about the final rule, or if you would like to know more about Fragomen’s electronic I-9 system and the Fragomen I-9 Service Center.
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