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Monday, August 2, 2010

I-9 Electronic Signature Clarified

By: Tommy Eden, Attorney

The U.S. Department of Homeland Security (DHS) on July 22, 2010 (effective Aug. 23, 2010), published a final rule in the Federal Register on the electronic signature and storage of the Form I-9. It also recently released new field guidance on worksite enforcement, strengthening its efforts to target employers who knowingly violate the law; increases the use of administrative tools such as Form 1-9 audits, criminal prosecutions, seizure of assets, civil fines, and debarment. For more information see

The final rule permits employers to complete, sign, scan and store the Form I-9 electronically as long as certain performance standards set forth in the final rule for the electronic filing system are met and makes minor modifications to the interim final rule to clarify that employers:

• Must complete a Form I-9 within three business—not calendar—days.

• 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 for each time a Form I-9 is viewed electronically, but only when the Form I-9 is created, completed, updated, modified, altered or corrected.

• 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.

• DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. It cautioned, though, that employers should apply consistent policies and procedures for all employees to avoid discrimination.

• Only the pages of the Form I-9 containing employer- and employee-entered data need be retained. Other pages of the current form are instructions for completing the Form I-9 and need not be retained.

• DHS cautioned that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9.

Common Sense Counsel: I-9 Best Employment Practices

1. Use the DHS employment eligibility verification program E-Verify to verify the employment eligibility of all new hires (E-Verify is used by more than 126,000 employers nationwide, with 1,000 new businesses joining each week);

2. Establish an internal training program on the hiring process, with annual updates (i.e., on how to manage completion of Form I-9 [Employment Eligibility Verification Form]), and on how to detect the fraudulent use of documents in the I-9 process;

3. Permit the I-9 and E-Verify process to be conducted only by individuals who have received this training, and include a secondary review as part of each employee’s verification, to minimize the potential for a single individual to subvert the process;

4. Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process;

5. Ensure and document the definitive resolution of no-match letters received from the Social Security Administration (SSA), per SSA and Department of Homeland Security guidance;

6. Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips;

7. Establish and maintain appropriate policies, practices and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing or recruitment or referral for a fee because of citizenship status or national origin.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at