Modifications to Electronic I-9 Requirements
The Department of Homeland Security (“DHS”) published its final rule on July 22, 2010, modifying the regulations pertaining to electronic signature and storage of Form I-9, Employment Eligibility Verification. The rule makes the following changes:
- Clarifies that employers must complete Section 2 of Form I-9 within three business days of the time of hire. The prior rule on electronic I-9s did not specify “business” days as the relevant standard. (Employers should distinguish this rule from the deadline for an employee to complete Section 1, as Section 1 must be completed and signed on the day of hire.)
- Clarifies that employers may use paper, electronic systems, or a combination of paper and electronic systems.
- Clarifies that employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations.
- In another important development, employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the I-9 is created, completed, updated, modified, altered or corrected. This change is in response to several comments noting that the prior rule’s broad language requiring an audit trail every time an I-9 was viewed or accessed would be overly burdensome for employers.
- The rule changes the requirements regarding the searchability and indexing of electronic I-9 records, eliminating the overly broad language in the prior rule.
- Finally, employers are required to provide a printed confirmation of an electronic I-9 transaction to the employee only when the employee requests a copy. In addition, when an employee requests such a record, the employer has a reasonable period of time to provide the record. DHS made this modification after commenters noted that a blanket requirement for a printed transaction record was contrary to the purpose of implementing an electronic system.