Grapevine and Electronic Form I-9 Audit Trails
By: Dave Fowler
Information, misinformation, and gossip travel
quickly over any industry grapevine and the world of immigration is no exception.
Sometimes the information on the grapevine is correct and sometimes it’s not. It’s
difficult to discern. Here is some grapevine
fodder to consider regarding the recent $1
million fine assessed on clothing retailer Abercrombie & Fitch for violations
of the employer’s obligation to verify the employment eligibility of its employees.
According to the grapevine, a faulty audit trail for electronic Forms I-9 may be to
The final electronic Form I-9 rule does not
require the employer to retain audit trails of each time a Form I-9 is electronically
viewed. However, the employer must retain an audit trail when a Form I-9 is created,
completed, updated, modified, altered, or corrected. Generally, an audit trail is
a record showing who has accessed a computer system and the actions performed within
or on the computer system during a given period of time. The employer must ensure
that whenever the electronic Form I-9 record is created, completed, updated, modified,
altered, or corrected, a secure and permanent record is created that establishes the
date of access, the identity of the individual who accessed the electronic record,
and the particular action taken.
The kicker is that, according to the electronic
I-9 rule, the employer must establish the authenticity and integrity of the Forms
I-9 such as audit trails and insufficient or incomplete documentation (e.g., a non-compliant
audit trail) is a violation of section 274A(a)(1)(B) of the Act. So, according to
the grapevine, the issue may have been that since the audit trail was not compliant,
all Forms I-9 completed electronically were considered invalid and therefore, the
employer was deemed to have violated the regulations by not having Forms I-9 on file
for the employees.
So, when developing your own electronic Form
I-9 process or evaluating a third-party product, take the time necessary to evaluate
all aspects of the product to make sure it complies with the final regulation regarding
electronic Forms I-9.
October 12, 2010 Update:
This weblog is sponsored by TALX.
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