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Electronic Storage of Employment Records Part III – I9 Forms

Electronic Storage of Employment Records Part III – I9 Forms

The U.S. Department of Homeland Security (DHS) published a final rule, which took effect August 23, 2010 that 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.

The final rule clarifies 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.

Employers may copy or make an electronic image of a document used to comply with the I9 form, however are not required to do so.  Employers are cautioned that they should apply consistent policies and procedures for all employees to avoid discrimination.

The Form I-9 and verification documentation may be stored in a separate Form I-9 file or as part of an employee’s other personnel records.  In addition, only the pages of the Form I-9 containing employer and employee entered data need to be retained.  Other pages of the current form or instructions for completing the Form I-9 do not need to be retained.

According to DHS, it is unnecessary to require an audit trail to record every time a Form I-9 is simply viewed or accessed but not modified.  When the Form I-9 is created or modified a secure and permanent record must be created establishing the date of access, the identity of the individual who accessed the electronic record and the particular action taken.

Employers are required to provide or transmit a confirmation of the transaction only if an employee requests it.  If requested, a receipt when completing an electronic record should be provided within a reasonable period of time, but it need not be provided at the time of the transaction.

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

Details on how to maintain electronic employments files can be found in Part I and Part II of our E-File Blog series “Electronic Storage of Employment Records Part I – The Basics”  & “Electronic Storage of Employment Records Part II – ERISA” 



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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.