The Department of Homeland Security (DHS) recently published final regulations that amend interim rules promulgated in June 2006 which govern electronic signatures and storage for employers who complete and retain the Form I-9 in an electronic format. The Final Rule affirms that employers can complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9).  DHS also provides much needed clarification on certain technical requirements including more options for data compression, fewer storage requirements, and more options for storage systems, among others.

The follow is a summary of the key changes made by this Final Rule:

Employers must complete a Form I-9 within three business (not calendar) days. As we reported, USCIS recently provided clarification on when employers should start counting.

Employers may use paper, electronic systems, or a combination of paper and electronic systems. This clarifies that an employer may choose whether or not they want to create digital images or data of their historical paper I-9 forms when converting to an electronic I-9 system.

Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations, including accessibility and the ability to produce a reasonable facsimile or copy of the I-9.

Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected.

Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

The final rule also makes technical and conforming amendments to the regulations including the requirement that an electronic I-9 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.”

At first glance, these are welcomed changes that remove some of the roadblocks that may have kept employers from adopting an electronic I-9 system as part of their I-9 compliance program. Employers who are ready to switch to an electronic I-9 solution should make sure the system they adopt meets and exceeds the requirements in the Final Rule, such as Tracker I-9 .

More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9. For further guidance on the electronic signing and storage of the I-9 and to review the final rule in its entirety please visit the amendment as published in the Code of Federal Regulation.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.