November 29, 2004

RE: I-9 Employment Eligibility Forms

President Bush recently signed into law a bill which finally allows employers to electronically complete and store I-9 employment eligibility forms.

As you know, the I-9 form must be filled out for every new employee, documenting verification of both the employee’s identity and his/her eligibility for employment. Employers are responsible for filling out these forms and for maintaining these records for all employees, even U.S. citizens. Prior to this change, an employer had only three options for record retention: paper, microfilm, or microfiche. The new law gives employers the option to move to an electronic format, without mandating that companies make the switch, and also allows for the use of electronic signatures on the I-9 form.

It is important to note, however, that the new law does not change the document verification requirements under the Immigration Reform and Control Act (IRCA). Employers are still required to review original documentation to verify both an employee’s identity and employment eligibility. Nor does the law affect the required document retention period. Under IRCA, employers must maintain these I-9 records for three (3) years from an employee’s date of hire or one year from the date of termination, whichever is later.

Finally, you should be aware that the Department of Homeland Security has yet to issue final regulations implementing the law. As those regulations are likely to answer several open issues, such as what types of electronic storage and signatures will be acceptable, we recommend that all employers hold off implementing a paperless I-9 process until the Department issues the regulations.

If you have any questions regarding an employer’s responsibilities for creating and maintaining I-9 forms, please do not hesitate to contact us.

Sincerely,

Peter Bennett