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New Legislation Permits Employers to Prepare and Retain I-9 Forms Electronically

November 5, 2004

On October 30, 2004, President Bush signed into law legislation permitting employers to complete and store Employment Eligibility Verification Forms ("I-9 Forms") in an electronic format. The new law, which amends the Immigration and Control Act, becomes effective on the date on which the Department of Homeland Security ("DHS") promulgates final implementing regulations, or 180 days after the President's signature, whichever is earlier.

Under the Immigration Reform and Control Act of 1986, employers are required to verify the identity and eligibility for employment of all new hires, through an examination of employment authorization documents and completion of an I-9 form. Under the current law, employers may retain the I-9 forms on paper, microfilm or microfiche. The new law adds "electronic format" (which would include formats such as digital scanning) to this list of approved formats. The new legislation does not require employers to retain the records electronically; rather employers may continue to use any of the approved formats. Once the law becomes effective, employers may convert records that already exist in paper, microfilm or microfiche form into an electronic format. The new law does not change the requirements for retention of I-9 forms (i.e., one year from termination of employment or three years from the date of hire, whichever is later).

The amendment also permits employers to complete the I-9 forms electronically by use of electronic signatures for both the employee and employer. Again, employers are not required to use electronic signatures. Notably, employers are still required to view the original documents proving the employee's identity and eligibility to work.

Although the new law does not set forth specific standards for electronic storage and signatures, such standards will presumably be addressed by the DHS in its implementing regulations.