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New Guidance on the Electronic Storage of Immigration Employment Verification Records

1370556_32170671.jpgThe Department of Homeland Security (DHS) released a new set of guidelines for employers who use electronically-generated forms to verify their employees’ eligibility to work in the United States. The Employment Eligibility Verification Form I-9 can be a paperwork nightmare for employers, requiring collection of documents from every employee with strict retention requirements. Recent upgrades to DHS’ and other computer systems have allowed employers to skip much of the paperwork and conduct employment eligibility verification electronically. While this may seem more efficient and cost-effective, DHS has developed a separate set of guidelines for these electronic documents that may occupy the same amount of an employer’s time and resources.

The Basic Form I-9

The paper Form I-9 has a portion to be completed by the employee and a portion to be reviewed by the employer. The employer must retain the original form, with the employee’s signature, in its records until the later of three years after the employee’s hire date or one year after the employee stops working there. The government does not receive any of these documents, but they must be readily available if Immigration and Customs Enforcement (ICE) decides to conduct an audit.

In addition to providing basic information like name, address, and date of birth, the employee must provide documents as evidence of the employee’s ability to work in the U.S. In some cases, a single document can demonstrate both the employee’s identity and employment authorization. These “List A” documents may include a U.S. passport or permanent resident card, a foreign passport with the appropriate nonimmigrant visa, or a DHS-issued Employment Authorization Card. Employees may also submit two documents, one showing identity (“List B” documents) and one showing work authorization (“List C” documents). List B documents might include a driver’s license or other government-issued identification. List C documents could include a social security card or birth certificate. Employers must verify that these documents appear at least facially valid, and they should keep copies of the submitted documents with the original I-9.

Electronic Audit Trails

ICE began allowing employers to create electronic I-9’s, with electronic signatures, and store them entirely virtually in August 2010. Because the creation and storage of such records does not create the same sort of “paper trail” as actual paper records, DHS has issued guidelines that allow ICE to trace I-9 records and verify that employers are following the proper procedures. Whatever system employers use to create and store I-9 records must create a new audit record every time a record is created, accessed, modified, updated, or completed. These audit records must identify the person who accessed the record, record any actions taken, and state the time and date this occurred.

For the I-9 records and any supporting documents provided by employees, employers must provide ICE with information about the software used. They must also disclose their procedures or protocols for creating and storing records, protecting the security of the records, and maintaining quality assurance. Finally, ICE may request the “indexing system” used by an employer to link electronically-stored information to each employee.

The Rant

Electronic storage is supposed to improve efficiency and reduce waste by freeing up office space otherwise devoted to file storage and by drastically cutting down on paper usage. Existing I-9 file retention requirements tend to put employers into the position of verifying the validity of various legal documents, with or without any particular expertise in that field. The new guidelines for electronic audit trails make employers responsible for complicated digital recordkeeping, again regardless of the employer’s expertise.

Web Resources:

Guidance on the Collection and Audit Trail Requirements for Electronically Generated Forms I-9 (PDF file), Office of the Executive Director, Homeland Security Investigations, U.S. Department of Homeland Security, August 22, 2012 (source)

More Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Business Immigration, ImmigRantings, May 14, 2012
Self-Check: The Toolkit Every Worker Should Use, ImmigRantings, March 26, 2012
Photo credit: ‘lots of files’ by Ayla87 on stock.xchng.