The Department of Homeland Security (DHS) recently issued a final rule, which makes minor changes to an interim final rule promulgated four years ago, providing that employers and recruiters who are required to complete and retain Form I-9 may sign Form I-9 electronically and retain it in an electronic format.

Employers and recruiters are required to complete Form I-9, Employment Eligibility Verification, for each new employee. The completed Form I-9 is to be retained by the employer who must make it available for inspection upon request by US Immigration and Customs Enforcement (ICE) investigators or other authorized federal officials. Failure to properly complete and retain each Form I-9 can subject the employer or recruiter to civil monetary penalties. In June 2006 DHS published an interim rule to permit electronic signature and storage of Form I-9. DHS received nine comments to the interim rule, which were addressed in the final rule.

The final rule clarifies that employers:

  • must complete a Form I-9 within three business (not calendar) days of a new employee’s start date;
  • may use paper, electronic systems, or a combination of paper and electronic systems;
  • may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
  • 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
  • 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.

The final rule took effect August 23, 2010.