On June 15, 2006, the Bureau of Immigration and Customs Enforcement (“ICE”) of the Department of Homeland Security ("DHS") published an interim rule allowing electronic signature and storage of the Form I-9, Employment Eligibility Verification. This interim rule provides a method for employers to take advantage of the provisions of Public Law 108-390, signed on October 30, 2004.
The interim rule adopts electronic recordkeeping standards that closely follow those used by the Internal Revenue Service (“IRS”) for tax records. Employers who currently use electronic records systems for accounting and tax functions may expand those functions to include the I-9 employment verification process. To comply with the interim rule, any electronic record system for I-9 storage must include: i) controls to ensure integrity, accuracy and reliability; ii) controls to prevent unauthorized creation, manipulation or deletion of electronically stored Forms I-9; iii) established inspection and quality assurance programs; iv) retrieval system that includes an indexing system; and v) the ability to reproduce legible and readable hard copies.
The interim rule also allows for electronic completion and signature of a Form I-9. To comply with the interim rule, the electronic signature must be attached to or associated with the electronically completed Form I-9 and the system used to capture the electronic signature must include an acknowledgement that the signatories (employer representative and employee) have read the I-9 attestation. In order for an electronically signed Form I-9 to be considered properly completed, the following standards must be met: i) the electronic signature must be affixed at the time the Form I-9 is completed and signed; ii) a record verifying the identity of the signatory must be created and preserved; and iii) a printed confirmation of the electronic signature must be provided to the employer representative and employee signing the Form I-9 at the time of completion.
The interim rule does not prohibit employers from using existing paper-based I-9 recordkeeping systems or from using a combination of paper and electronic methods to fulfill Form I-9 requirements. The DHS does, however, emphasize the many potential advantages that the new electronic signature and storage option offers to employers. Those advantages include increased cost savings for large employers who normally pay for filing and storage of paper forms, more accurate completion and retention of Forms I-9, and more efficient methods of searching Forms I-9 for reverification, quality assurance and inspection purposes.
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