Employers May Utilize Electronic I-9 Forms

President Bush recently signed into law HR 4306, allowing for the electronic storage of, and new electronic signatures on, I-9 forms. This law will immediately go into effect on April 28, 2005, unless the Department of Homeland Security issues regulations before then.

Under the Immigration Reform and Control Act of 1986 (“IRCA”), employers are required to document that all employees hired after November 6, 1986, are eligible to work in the United States. IRCA requires employers to use Form I-9 to conduct employee verification. Before the introduction of HR 4306, IRCA only allowed three forms of record retention for I-9s: paper, microfilm and microfiche. HR 4306 now adds “electronic format” to this list of record retention, which allows employers to store I-9s electronically in PDF or other formats. Employers will be able to convert existing paper I-9 forms into electronic formats if they so choose. Under HR 4306, the electronic I-9 records and the related I-9 signatures have the same force and effect as the traditional records.

So what are the benefits of HR 4306? The new law provides several advantages to employers. First, employers will gain much needed storage space, especially in cases where they previously maintained hard copies of I-9 forms for years. It is important to note, the retention requirements for previously completed I-9 forms, which must be retained by an employer for one year after the date of termination of the employee, or three years from the date of hire, will not change. Second, the use of the automated form will significantly enhance efficiency and productivity at companies with thousands of employees, especially where satellite offices exist or turnover is high. Third, in the event of an audit by immigration officials, employers can electronically transmit the I-9 forms for review, as opposed to using valuable time and energy copying and mailing numerous documents.

This new law does not require employers to use the electronic format, but it offers the opportunity for those seeking a paperless office. Many employers are jumping on the “electronic bandwagon” and moving toward electronic filing of all employment forms.