Final Electronic Form I-9 Rule Approved
By: Dave Fowler
The US Department of Homeland Security, Immigration
and Customs Enforcement (ICE) approved the Electronic
Signature and Storage of Form I-9, Employment Eligibility Verification final
rule July 21, 2010 and published the rule in the federal register July 22, 2010. The
final rule is effective August 23, 2010 and may be found in the Federal
Register at www.regulations.gov.
I have reviewed the final rule and found nothing
to concern users of the TALX I-9/E-Verify service. The final rule makes minor changes
to the interim rule of June 6, 2006. However, some of the changes do provide helpful
clarifications. For example:
final rule confirms that the Form I-9 must be completed within 3 business days not
calendar days after the employee’s first day of work for pay. USCIS posted guidance
on their web site regarding this Form I-9 requirement. Make
sure the employee completes Section 1 on or before their first day of work for pay.
may use electronic systems or a combination of paper and electronic systems to complete
and store Forms I-9. This was how we interpreted the interim rule, but based on comments
they received ICE decided to clarify the rule.
audit trail retained for an electronic Form I-9 does not need to include each time
a Form I-9 is electronically viewed. The audit trail need only contain a record of
when the Form I-9 was created, completed, updated, modified, altered, or corrected.
Our audit trail currently tracks views of an electronic Form I-9 and it will continue
to do so.
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. Due to the sensitive personal information
that may be on a receipt, we do not transmit employee receipts.
the page of the Form I-9 containing employer and employee-entered data needs to be
retained. The pages of the Form I-9 containing instructions and the list of acceptable
documents do not need to be retained. We only retain only the Form I-9 page containing
employer and employee-entered data.
search criteria are changed. In the interim rule there was a conflict on this point.
In one statement the interim rule stated that the electronic storage system must be
able to be searched by every data field on the Form I-9. In another statement the
interim rule stated that the storage system was compliant if it was consistent with
a paper-based filing system. The final rule deletes the search language from the interim
rule and replaces it with language stating that the storage system must permit the
identification and retrieval for viewing or reproducing of relevant documents and
records maintained in the electronic storage system.
employer must be able to provide the requesting agency of the United States the resources
(e.g., appropriate hardware and software, personnel, and documentation) necessary
to locate, retrieve, read, and reproduce (including paper copies) any electronically
stored Forms I-9, any supporting documents, and their associated audit trails, reports,
and other data used to maintain the authenticity, integrity, and reliability of the
records. This means that an auditor will want the employer to provide any and all
of these records or provide the auditor with direct access to the records.
the employer makes a copy or electronic image of employee documentation it must either
be retained with the Form I-9 or stored with the employee’s records, and be retrievable
and printable. This allows the employer to retain paper and/or electronic copies of
may change electronic storage systems as long as the systems meet the performance
requirements of the regulations.
This weblog is sponsored by TALX.
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