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Homeland Security Department Revises I-9 Recordkeeping Requirements

June 22, 2006

Section 274A of the Immigration and Nationality Control Act requires all employers, as well as those who recruit or refer employees for a fee, to complete an Employment Eligibility Verification form (Form I-9) for all employees.  The completed I-9 forms must then be retained for a specified period:  employers must retain the documents for three years after the employee was hired, or for one year after the employment terminates, whichever date is later; recruiters must retain the forms for three years after the date of hire.  The Department of Homeland Security (DHS) recently amended its regulations regarding the completion and storage of I-9 forms and has published a new interim rule, effective June 15, 2006. 

The new interim regulations allow employers to complete, sign, and store I-9 forms electronically and to scan existing I-9 forms for purposes of electronic storage.  While the regulations do not mandate the use of any particular technology, they do establish performance standards for the selected system(s).  For example, there must be “reasonable controls” to prevent the unauthorized alteration of I-9 forms, the system must have an indexing system that permits searches by any data element, and all documents reproduced by the system must exhibit a high degree of readability.  These standards draw heavily upon those that have been developed by other Federal agencies (in particular, the IRS), that permit the electronic completion and storage of documents.

The new regulations do not require an employer to take any actions in addition to or different from those that were previously required.  Rather, they create new choices: where an employer previously was required to complete and store paper copies of I-9 forms, the employer may now choose any combination of paper and electronic processes that suits its needs.  Thus, with careful planning, employers can benefit from the efficiencies that electronic processes offer.  However, there will be costs associated with implementing the technology and with preparing the supporting documentation that the DHS requires.  As such, it is likely to be large employers that are best positioned to take advantage of the rule. 

For more specific guidance on invoking the available procedures under the new rule, please contact any of our attorneys.