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UPDATES ON I-9 COMPLIANCE AND ELECTRONIC SIGNATURES

Section 274A of the Immigration and Nationality Act (Act), 8 U.S.C. 1324a, requires all U.S. employers to verify the employment eligibility and identify of all employees hired to work in the United States after November 6, 1986. To comply with the law, an employer is responsible for the completion of an Employment Eligibility Verification form (Form I-9) for all employees, including United States citizens. Completed I-9s are retained by the employer for three years after the date of hire or one year after the date that employment is terminated, whichever occurs later. The failure to properly complete and retain I-9s may subject the employer to criminal and monetary penalties.

There is no rule or regulation mandating where I-9 forms must be retained.  However, best practices would dictate keeping I-9 forms separate from other personnel records. If an audit occurs, it is more efficient to avoid searching for I-9 forms in individual personnel files. Maintaining separate I-9 forms also makes it easier to conduct periodic self-audits of compliance status.

The law holds employers to a "reasonably prudent person" standard to determine whether the documents an employee presents reasonably appear to be genuine, relate to the individual, and authorize employment.  It is important to note that employers may be open to allegations of discrimination if a document that reasonably appears to be genuine is refused.

The law pertaining to I-9 compliance by U.S. employers has been amended to allow for electronic completion and storage of I-9 documents.  The new law further allows for:

  • Use of an electronic signature by both the employee and the employer to attest verification of identity and eligibility documents,
  • Maintenance of I-9 forms in PDF or other electronic formats, and
  • Conversion and maintenance of existing paper I-9 forms into electronic formats.

As such, companies are now permitted to accept electronic signatures, thus allowing I-9 forms to be prepared and completed entirely electronically.  However, it is important to note that there is no government guidance to date regarding electronic signatures. Electronic signatures may be created through the use of any system that includes: the acknowledgment that the attestation as to accuracy of the information on the form has been read by the employer, and that it provides for the attachment or association of the electronic signature to the Form I-9.

The guidelines issued by the government do make reference to several methods of electronic signature, including electronic signature pads, Personal Identification Numbers ("PINs"), biometrics and "click to accept" dialog boxes.

The Federal Register, published, June 15, 2006, sets out several requirements for the electronic generation or storage system of I-9s.

These regulations require that:

-         Documents exhibit a high degree of legibility and readability.

-         Any electronic storage system must not be subject to any agreement that would limit or restrict the relevant Government personnel's access or use on the employer's business premises.

-         Descriptions of the system, including procedures for use and indexing systems, be maintained and made available upon request.

The regulations also allow for the use of multiple electronic systems as long as each meets the relevant standards, and permits reasonable data compression and formatting technologies.

BENEFITS TO ELECTRONIC FILING AND STORAGE

  • Elimination or minimization of common clerical errors such as omission of data, entering data into the wrong fields, forgotten signatures or dates, the wrong combination of documents accepted and even the I-9 form being completed in an untimely manner.
  • More efficient and better tracking of expiration of status.  The electronic system creates an environment where HR specialists can not only track document expiration dates but can establish reminders for the need to provide proof of renewed authorization regularly emailed to affected employees.
  • Electronic I-9 storage gives the employer the ability to streamline files and produce files quickly in the case of an audit.  Employers are only given 3 days to compile all of their I-9 forms upon audit, which, if stored manually can be difficult, especially if they are spread out among various departments or even branches of a company.  
  • Electronic storage can save documents from destruction in the event of a disaster by giving the employer the ability to create backups on a daily basis.

Of course, no new technology comes without its challenges, and electronic completion and storage of I-9's is no exception.  Manual (or paper) I-9s do not fall victim to internet hackers in the way that electronically stored I-9s can.  Therefore, employers must be cautious to create tamper-free conditions of digital I-9s. 

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