DHS’ Final Electronic I-9 Rule Eases Paperwork Burden on Employers

[Editor’s Note: today’s blog, which continues our coverage of the final electronic I-9 rule, is courtesy of Ilana Drummond of Jackson & Hertogs] New regulations published by the Department of Homeland Security last week have eased some of the prior requirements of electronic I-9 creation and reporting. One of the best items of import to employers is that they are no longer required to provide a printed confirmation of the I-9 transaction at the time of completion. The original electronic I-9 rules – published in 2006 to implement new legislation – previously required employers to provide the I-9’d employee a “printed confirmation” of the I-9 transaction.  But the 2006 electronic I-9 rules did not define what form such “printed confirmations” could take.  Employers were left to wonder if a duplicate copy of the Form I-9 for the employee was the best way to comply, or whether some other kind of “printed confirmation” (which did not contain sensitive information) could suffice instead. The problem for employers was twofold – providing a hard copy “on the spot” at the time of completion, can be difficult. The HR completing the I-9 with the individual may not have access to a printer OR, given the volume at a new hire orientation, may be simply unable to process all the I-9s and print out the confirmations. Second, even when the printer is available, an HR may be uncomfortable providing a hardcopy of the Form I-9 form itself, due to the sensitive data contained therein.  The original DHS rule alluded in the preamble to “terms of art” borrowed from IRS and SEC.  These references seem to use the term “printed confirmation of transaction” which is an e-commerce term referring to the creation of a kind of receipt. Thus, the I-9 rules, while ambiguous, seem to best refer to a kind of printed “receipt” of the transaction, (as you would have with, say, an SEC trade).  But of course, the I-9 form itself would certainly suffice. The problem with issuing the I-9 form itself is that it contains sensitive data that could if misplaced be used for identity theft. Under the final regulation, DHS has modified this area. DHS now allows employers to provide or transmit confirmation of a Form I-9 transaction within a reasonable period of time and upon a request of the employee. Therefore, this is only an obligation when the employee requests the confirmation. Furthermore, DHS clarifies what is sufficient to meet the obligation of providing a confirmation of transaction and the time frame by which the confirmation should be provided. In the comments to the final rule, DHS explains:

DHS removed the language requiring the employer to provide the confirmation at the time of the transaction. DHS understands that in certain situations it may be impracticable for employers to transmit or print a confirmation of the transaction because the employee may not have access to a computer or the employer may not have the capability to print a paper copy of the electronic record at the time the document is completed electronically. If, however, the employee requests confirmation, it is reasonable for the employer to be required to give the employee a copy of the information provided within a reasonable period of time. Providing the option of electronic preparation and storage does not in any way alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9. Though not required when preparing a paper Form I-9, DHS believes requiring an employer to provide a receipt upon employee request when completing an electronic record allows employers and employees to confirm the accuracy of the information provided.

By removing the requirement that the transaction confirmation be provided immediately upon completion and by clarifying what is acceptable to meet the obligation if the employee so requests are both welcome news to employers.