DHS Issues Updated Guidance on Electronic Form I-9 Compliance

On August 23^rd 2010 US Immigration & Customs Enforcement’s electronic signature and storage of electronic Form I-9 went into effect. In summary the rule amended regulations that allow employers to complete and store electronically generated Form I-9. The rule also made modification regarding the requirement of audit trails. Whenever an electronic I-9 is created, completed, updated, modified, altered or corrected a secure and permanent record should be created that establishes the date accessed, who accessed it and what action was taken. Further the rule also specified certain standards for the systems creating the electronically generated Form I-9.

In order to properly inspect electronically generated Form I-9 for compliance with these regulations, special agents and auditors are provided the following guidance on what information to collect from the employer at the time of inspection and what a minimum audit trail should be. In addition to the audit trail itself, special agents and auditors must ensure that the proper documents are obtained for electronically generated Form I-9 to be inspected for compliance. Upon service of Notice of Inspection the name of the software product being utilized and any internal practice and protocols related to the generation of, use of, storage of, security of and inspection and quality assurance programs for the electronically generated Form I-9.

The business or entity being inspected should also provide the indexing system identifying how the information contained in the Form I-9 is linked to each employee and documentation of the system used to capture the electronic signature including the identity and attestation of the individual electronically signing the Form I-9.

When evaluating the documents, the special agent or auditor will look to ensure the audit trail captures at a minimum the following information for each Form I-9:

• Individual accessing the Form I-9;
• Date and time the Form I-9 is accessed; and
• Action taken on the Form I-9.

HSI considers there to be at least 11 steps in the creation and completion of an electronically generated Form I-9 that must be documented in the audit trail (plus additional steps for Forms I-9 that have been re-verified or modified/corrected).