On August 23, 2010, US Immigration and Customs Enforcement (ICE) issued a final rule permitting electronic signature and storage of the Form I-9. The rule also clarifies confusion regarding the deadline for completing the Form I-9. Specifically, the rule provides that:
- Form I-9 must be completed within three business (not calendar) days of the employee’s first day of work;
- Employers may use a paper or electronic system, or a combination of the two;
- Employers are free to change their electronic storage system, but the burden remains on the employer to ensure that the system meets the performance requirements of the regulations (see article regarding Abercrombie & Fitch fine);
- It is not necessary to retain an audit trail to record every time an electronic Form I–9 is simply viewed or accessed but not modified. However, an audit trail is required whenever a record is created, completed, altered, updated or otherwise modified;
- Employers are not required to provide a confirmation of a Form I-9 transaction unless the employee requests a copy.
While the rule acknowledges the cost-saving potential of a paperless system, employers should be careful to comply with the requirements of the regulations.