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Championed by trade organizations including the Professional Lawn Care Association of America and the Retail Industry Leaders Association, legislation allowing employers to complete and store I-9 forms electronically has made its way through Congress and is awaiting the President’s signature.
The U.S. Chamber of Commerce reported Tuesday that Congress passed H.R. 4306. The bill, which aims to “amend section 274A of the Immigration and Nationality Act to improve the process for verifying an individual’s eligibility for employment,” was introduced in May by republican congressman Chris Cannon of Utah and was cosponsored by 7 democrats and 15 republicans. The vote was passed with unanimous consent in both the House of Representative and the Senate.
“For a small employer with few employees and a few new hires per year, the paper route may be the most logical,” Cannon says. “But in industries with high employee turnover, electronic completion of I-9 forms will save time and money, as well as helping in enforcement. This legislation will dramatically improve efficiency, increase security, and save significant resources currently being spent on the processing and storage of paper forms if an employer chooses to do so.”
Prior to this legislation, Employment Eligibility Verification forms, or 1-9 forms, remained among the only documents that employers could not store electronically; paper, microfilm and microfiche were the only acceptable storage formats. Cannon notes the importance of streamlining the outdated regulation in order to help employers become more efficient in their employment processes and data storage.
Additionally, in response to frequently asked questions regarding the legislation, the U.S. Chamber of Commerce released the following information about the bill.
Q: Does the bill mandate that employers use electronic I-9 forms?
A: No, the bill merely provides this as an option to employers, who may continue to use paper forms, if they wish. Previously, the law allowed only three forms of record retention for I-9 forms: paper, microfilm or microfiche. This bill simply adds “electronic format” to this list of methods for document retention.
The bill also allows for, but does not mandate, the use of electronic signatures by the employee and the employer on the I-9 document. This would allow employers to have the I‑9 verification process completed online or on a computer. However, the regulations still mandate that an employer view the ORIGINAL documents presented by the employee to prove identity and work authorization, so the process cannot be completed remotely.
Q: When does the new law become effective?
A: Once the President signs the bill, the new law will become effective on the date the Department of Homeland Security (DHS) publishes final implementing regulations OR 180 days after enactment, whichever comes first. Essentially, this allows the DHS 180 days to put out regulations governing the electronic completion and storage of I-9 forms. If it does not, the employer may proceed to do so anyway. However, once the DHS issues regulations, employers may need to conform their storage formats to the new rules.
Q. Does the law impact previously completed I-9 forms?
A. The law would allow employers to transfer existing paper, microfilm or microfiche records to electronic format, but would otherwise not change the retention requirements for previously completed I-9 forms. I-9 forms must be retained by employers for one year after the date of termination of an employee, or for three years from the date of hire, whichever is longer.
Q. What types of electronic storage or signatures will the new law allow?
A. The new law does not specify standards for electronic storage or signature. Presumably, the DHS will issue such standards in their regulations. The Chamber of Commerce will work with the DHS to ensure the broadest possible leeway for employers while establishing clear safe harbors.
Q. Will this law make it easier for Immigration & Customs Enforcement to audit employers’ I-9 forms?
A. The law does not say anything about I-9 or employer verification enforcement. The law does not change any of the existing regulations governing audits of I-9 forms by the government. However, the regulations published by the DHS may be changed to allow enforcement agents to request and view electronic versions of I-9 forms if they are stored in that fashion by employers, eliminating the need to print and present paper copies of the forms to agents. Presumably, electronic storage and indexing would make it easier for employers to meet document production demands during any investigation, and would allow employers to more easily ensure that only those documents under review are presented.