FORM I - 9 ELECTRONIC STORAGE

This article was written by Bern Lefson, SCORE Orange County Management Counselor

Dep’t of Homeland Security’s Immigration and Customs Enforcement (ICE) division issued a final rule on electronic storage of Form I-9, replacing an interim rule that’s been in place since 2006.  The final rule takes effect August 23 and a complete copy of the final rule is available at http://edocket.access.gpo.gov/2010/2010-17806.htm.   Some of the questions addressed in the rule are:

1.     Time frame for completing Form I-9?  Within three business days (not calendar days) of the date employment begins.

2.     OK to use a combo of electronic and/or paper storage systems to retain copies?  Yes.

3.     OK to change electronic storage systems, as tech evolves?  Yes, so long as new system meets stated requirements.

4.     OK to store in electronic system with no option to produce a hard copy of the record?  No.

5.     OK to store ancillary docs (i.e., copy of proof of identify and/or authorization to work in U.S.) electronically?  Yes.  Not required to keep them at all but if you decide to, do it for all employees to avoid discrimination claims.  It’s really everyone or no one.

6.     OK to store I-9 with employee’s other records?  Separately?  Yes to both.  OK to keep I-9 with individual employee’s record, or put all I-9s together in a discrete file.

7.     Required to store the entire Form I-9?  No.  You do not need to store the instruction pages, only the pages with employee or employer data entered.

8.     Must required audit trail on each Form I-9 track every time file is accessed, even when record not modified but only viewed?  No.  Audit trail should track each time file is “created, completed, updated, modified, altered or corrected.”

9.     Must employer supply a receipt of transaction to every employee who completes an I-9?  No, only if employee requests it.

10.   Can I have a license or contract restriction on my electronic storage system that limits or prohibits access by U.S. government agencies?  No.