by
Robert C. Divine
ICE has finalized its regulation
implementing the 2005 law allowing electronic storage of Forms I-9. The interim
rule in 2006 had been unnecessarily restrictive, and the finals rule yields to
some sensible comments. Still, electronic I-9 creation or storage requires careful planning.
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Employers have three business
days - not calendar days - to complete Form I-9. This leaves some things
unclear, such as whether Saturdays, Sundays and holidays count if the
employer is open for business on those days. It also fails to address the
recent posting on USCIS' website concerning "what's the Hire Date for
E-Verify," in which USCIS stated that the deadline for completing I-9 and
E-Verify for a worker hired on Monday is Thursday, not Wednesday. The USCIS
posting also sought to clarify confusion arising when the employer opts to
complete Form I-9 after an agreement for employment but before actual work
starts. USCIS has indicated that ICE agrees with its posting, but it would
have been nice for ICE's regulation to make these clarifications for the
record.
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Employers may use paper,
electronic systems, or a combination of paper and electronic systems. This
seems to mean that an employer could have different storage practices for
different locations or even for different sets of workers within the same
location.
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Employers can use electronic
systems that store I-9 data as data as long as the system is able to produce
a reasonable facsimile or copy of the Form I-9. Only the pages of the form
containing employer data - not instructions - need be involved, but
employers need to show workers the instructions when the worker is
completing Form I-9 section 1.
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Storage systems must have an
"audit trail" recording every time an I-9 is created, completed, altered,
updated, or otherwise modified, but not when it was simply accessed as the
interim rule had required. Even some of the most sophisticated document
management systems do not make audit trails of mere access. The audit
trail must show the modifying action taken, the person who made the change,
and the date. Even this relaxed standard from the interim rule, applied
literally, seems to require more robust document management capability than
would be afforded by storing scanned images of paper I-9 Forms in a
Microsoft Explorer folder structure, even with restricted access.
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Electronic systems do not need
to be searchable by any data element in Form I-9, as the interim rule
required. The "indexing system" for electronic I-9 storage need only be
"functionally comparable to a reasonable hardcopy filing system."
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Employers need not provide the
employee with any paper confirmation transaction at the time of the
transaction unless the employer requests it, and even then only within a
reasonable time, which could include mailing it to the employee. This
accommodates many remote situations where printers may not be available.
DHS emphasizes, however, that the employer's representative still must
personally inspect the documents presented by the employee before completing
Section 2 of the Form I-9.
How We Can Help
Baker Donelson's Immigration Group regularly counsels employers on I-9
compliance. We perform private audits of I-9 documents, prepare compliance
programs, and train managers and workers in implementing those programs. We
evaluate particular questionable documents and situations. We help employers
decide whether and how to create or store I-9 forms electronically, to use
Social Security Administration's Number Verification System, or to participate
in the Department of Homeland Security's E-Verify program. We help federal
contractors design and implement E-Verify programs in compliance with Executive
Order 13465 as implemented in Federal Acquisition Regulations.
We defend sanctions actions by ICE for "paperwork" and "knowingly
hire" violations of I-9 rules. We work with our strong
Litigation Department to bring and defend claims against competitors based
on employment of unauthorized aliens. We advise and defend claims against
competitors based on employment of unauthorized aliens. We advise and defend
employers and managers in the increasingly common criminal investigations and
proceedings relating to employment of aliens.
We coordinate our Team's services closely with our firm's
well-respected
Labor and Employment Law Group and with our firm's
White Collar Crime Group. We provide advice and coordinate with U.S. and
foreign preparers concerning U.S. taxation of international companies doing
business in the U.S., and concerning the U.S. taxation of international workers
placed in the U.S. and abroad.
