In our April 2009 Employment Law Commentary entitled “New I-9 Forms in Effect,” we noted that all employers are required to begin using the new version of the U.S. Citizenship and Immigration Service (“USCIS”) Form I-9. On July 22, 2010, the United States Department of Homeland Security (“DHS”) published a final rule amending its regulations to allow I-9 forms to be signed electronically and retained in electronic format.13 The final rule, which took effect on August 23, 2010, applies to employers and recruiters, or those who refer employees for a fee and are required under the Immigration and Nationality Act to verify employment eligibility using I‑9 forms. The final rule permits those persons and entities to complete, sign, scan, and store the I-9 forms electronically—including those already existing—as long as certain performance standards are met. The final rule makes minor changes to an interim rule that became effective in 2006.  

The final rule, among other things, clarifies that:  

  • Employers must complete a Form I-9 within three business (not calendar) days;  
  • Employers may use paper or electronic systems, or a combination of paper and electronic systems;  
  • Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;  
  • Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when a Form I-9 is created, completed, updated, modified, altered, or corrected; and  
  • Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.  

Additional information regarding the final rule can be found at the United States Department of Justice website at the following URL: http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr22jul10.pdf.