Tuesday, February 17, 2009

The Brave New World of Electronic I-9s

Workforce Management
January 2009

Nearly three years ago, U.S. Immigration and Customs Enforcement issued an interim rule that allows employers to continue completing I-9 forms on paper while storing the forms electronically. However, its guidance stops short of identifying which systems will be acceptable under the law. Here are some of the issues that organizations should keep in mind when it comes to electronic storage of these required documents.

In April 2005, Public Law 108-390 came into effect, permitting employers to store electronic versions of completed I-9 forms rather than paper versions. Specifically, the new law allows I-9s, which are the forms that employers must complete to show that an employee is eligible to work in the U.S., to be completed and signed electronically. No regulations have as yet been promulgated by U.S. Immigration and Customs Enforcement. However, in June 2006, ICE issued an interim rule that mirrors its previous guidance on this matter. According to the interim rule, employers who choose to sign and store I-9s electronically should follow this guidance until final regulations are published.
The electronic I-9 law did not change any of the previous requirements for employers regarding the completion of I-9 forms for all employees hired on or before November 6, 1986.
The interim rule allows employers the option to continue to complete I-9s on paper while storing the forms electronically, although ICE has not yet clarified whether such paper versions may be discarded. Alternatively, under the new law and pursuant to the ICE guidelines, employers may now both complete and retain I-9s electronically.
However, the guidance stops short of identifying which systems will be acceptable under the law. ICE acknowledges in its guidance that there is no single government-wide electronic signature or storage protocol. The ICE guidance suggests that employers may wish to adopt the electronic storage and signature standards of a federal government agency, such as the Internal Revenue Service, until ICE issues the relevant regulations on this topic. U.S. Citizenship and Immigration Services has implemented an electronic signature mechanism for its "e-filing" procedures that requires users to "e-sign" electronic documents by selecting a checkbox that indicates approval of the information contained in the form. The ICE guidance mentions signature methods such as electronic signature pads, personal identification numbers, biometrics and "click to accept" dialogue boxes. The ICE guidance also suggests that employers use a quality assurance program to evaluate their electronic signature and storage systems to ensure integrity.
With respect to I-9 maintenance for inspection purposes, ICE suggests that employers use indexing systems and employ printing functions so that employers will be able to access and print hard copies of specific I-9 forms upon the request of the government—typically meaning ICE or the Department of Labor. As HR readers know, upon notification of an audit, employers are required to produce I-9s and requested supporting documents for inspection within three business days. The ICE interim rule on electronic I-9s states that at the time of inspection, "Forms I-9 must be made available in their original paper, electronic form, a paper copy of the electronic form, or on microfilm or microfiche." In addition, the interim rule states that employers must provide to requesting government agencies the "resources, such as hardware and software, necessary to locate, retrieve, read and reproduce any electronically stored Forms I-9."

Full Story: http://www.workforce.com/section/03/feature/26/10/61/index.html

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