ICE Issues Final Rule Regarding Electronic Storage of I-9 Forms

On July 22, 2010, the Department of Homeland Security’s Immigration and Custom’s Enforcement (ICE) department issued a final rule governing the electronic storage of the Form I-9, Employment Eligibility Verification. The final rule will become effective on August 23, 2010, and makes several notable changes to the 2006 interim final rule regarding electronic storage of I-9 forms and verification documentation.

Key Points of the Final Rule

In 2006, ICE issued an interim final rule that provided employers with the option to complete, sign, scan, and store I-9 forms electronically, as opposed to maintaining the traditional paper, microfilm, or microfiche system. While the soon to be effective final rule adopts the majority of the provisions from the interim final rule without modification, it clarifies a few looming questions about electronic storage that the interim regulations had left unsettled. Specifically, the final rule provides clarification on the following aspects of the electronic storage regulations:

  • Employers are required to complete I-9 forms within 3 business days (not calendar days) of the employee’s date of hire.
  • Employers may store I-9 forms in paper storage systems, electronic storage systems, or a combination of the two.
  • Employers may change electronic storage systems so long as the systems meet the performance requirements of the regulations.
  • Employers are only required to maintain audit trails when the I-9 form is created, updated, modified, altered, or corrected (not each time the I-9 form is viewed or accessed, but not modified).
  • Employers may provide or transmit a confirmation of an I-9 transaction to an employee, but are only required to do so if the employee requests a copy. Upon request, the employer must provide confirmation to the employee within a reasonable period of time.
  • Electronic storage systems must enable the employer to produce a reasonable facsimile or copy of the I-9 form.
  • Employers are only required to retain the pages of Form I-9 containing employer and employee-entered data.
  • Electronic storage systems are no longer required to be searchable by any data element; however, the system must maintain a retrieval system that includes an indexing system that meets the requirements of the regulations.
  • Employers may (but are not required to) copy or make an electronic image of documents used to verify the employee’s identity and eligibility to work; however, employers are cautioned to apply consistent policies and procedures to all employees in this regard to avoid possible discrimination.
  • Employers may store I-9 forms and verification documentation in a separate I-9 file or as part of the employee’s other employment records.

Employer Recommendations

Given the upcoming changes to I-9 form electronic storage regulations, now is the perfect time to review your immigration-related policies and ensure that the I-9 forms for all of your employees are in proper order. While an internal audit can be helpful in this regard, we recommend that you periodically engage an outside consultant to conduct an audit on your behalf to ensure your compliance with all employment eligibility verification laws.

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This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.


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