Driving In The Fast Lane On The Digital I-9 Superhighway
Well it’s about time. Although it took 17 years, Congress finally heeded the cry of employers and enacted legislation that authorizes the use of electronic signatures and the electronic retention of the ubiquitous “Employment Eligibility Verification” known as the Form I-9.
One month shy of the 17-year anniversary of IRCA (The Immigration Reform and Control Act of 1986), our national legislature enacted and President Bush signed Public Law 108-390.  While the new law was never officially trumpeted as environmental legislation, tree-huggers around the country (and beleaguered Human Resources professionals as well) are reportedly celebrating the paper-saving features of this new law. The new legislation is clearly a welcome development, but the transition to digital signatures and storage, as the present article will show, cannot occur until many unanswered questions are first resolved.
Public Law 108-390 (the Act) amends § 274A of the Immigration and Nationality Act (INA) [8 Code of Federal Regulations § 1324a] in two ways. When the Act takes effect:
The Act is effective no later than April 28, 2005, the 180th day after the President signed the law, unless the Secretary, Department of Homeland Security (DHS), or subordinate DHS officials, implement the Act before then by publishing final regulations in the Federal Register.
In order to avoid the confusion and widely varying approaches that would likely ensue if employers acted without implementing regulations, representatives of two immigration agencies within DHS, the Bureaus of Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (USCIS) met on December 10, 2004 with a number of business organizations to address a variety of as yet unanswered questions.  The meeting generated a number of issues and suggestions for future action, outlined below.
This author predicts that the regulation implementing digital I-9s will likely be published in final form only a few days or weeks before April 28, 2005. Thus, employers, for now, must be prepared to consider several issues and possible strategies as they embark on the Digital I-9 Superhighway.
1. What Should Employers Do with Their Huge Inventory of Current I-9s?
Employers pressed for office space may ask whether the Act allows for conversion of existing paper I-9 files into digital scans. Presumably, the permission granted in the Act to maintain an “electronic version” of each employee’s Form I-9 could be read to include pre-existing paper I-9s converted after April 28, 2005 into a digital format. While the answer for now remains unknown, employers may wish to put our requests for proposals and secure bids from vendors on the application features and cost of digital conversion.
Employers should also consider whether all steps have been taken under existing law to remove and discard original Form I-9s that are no longer subject to the I-9 retention rule. Assuming that there is no pending or actual threat of a government investigation or a discovery demand in litigation, Forms I-9 are no longer required to be retained as of the later of one year from date of employee termination, or, three years from date of hire.
Employers should also consider performing an audit of retained I-9s and taking good faith steps to correct Forms I-9 that are found to be out of compliance with regulations . Moreover, with the advent of the Sarbanes-Oxley Act (Public Act 107-204) and the recent amendment of the U.S. Sentencing Guidelines applicable to corporate defendants, employers (in consultation with legal counsel) may decide that an audit of I-9s is perhaps more than merely voluntary and recommended but mandatory and required for all but the bold and reckless.
Employers should also be aware of the administrative statute of limitations applicable to I-9s: Five years from the first date of hire (in instances where no I-9 was ever prepared and maintained); or, five years from the date when an I-9 was prepared correctly and completed fully.
2. After April 28, 2005, Will Scanning an Original Paper-Version of a Signed I-9 and Discarding the Paper Version Be Allowed?
Again, no one yet knows whether the permission granted in the Act to retain an electronic version of the Forms I-9 extends only to those forms which also comply with the new “electronic signature” requirements, or, whether hand-written signatures can be scanned and preserved instead of maintaining the original paper-based, signed version.
From the perspective of government immigration enforcement authorities and prosecutors, however, digital preservation of I-9s will likely only be allowed for electronic signatures that provide a ready basis for prosecution of false statements and other immigration crimes committed in the I-9 context. Thus, this author predicts that the scanning/discarding of hand-signed I-9s will not likely be treated as adequate compliance.
3. What Standards Will the Government Adopt for Electronic Signatures and the Electronic Retention of I-9s?
Business representatives at the December 10, 2005 meeting urged ICE and USCIS to refrain from adopting specific technological standards that may fall prey to obsolescence over time but instead to refer to an already-accepted standard such as the Federal Rules of Evidence. While the Federal Rules may change over time, as technologies, judicial interpretations and statutes change, employers will likely enjoy the greatest degree of flexibility if the I-9 technologies ultimately adopted by employers are likely to avoid the fate of the Betamax video-recorder and the 8-track tape player.
Whatever the standard ultimately adopted, the government’s immigration agencies and prosecutors will want to ensure that they will be able to detect and confirm whether electronic tampering has occurred. The challenge, therefore, of confirming the tamper-free condition of digital I-9s presents a different and possibly more difficult obstacle than that presented by paper I-9s.
4. How Will Existing I-9 Procedures Be Integrated with Forthcoming Electronic-Signature/Retention Regulations?
Current immigration regulations cover substantial turf. They allow for dispensation from I-9 compliance in limited circumstances, for example, when re-hiring employees who had a reasonable expectation of continued employment, or transferring I-9 liability and physical possession of the I-9 forms to a successor or reorganized employee. Current regulations also (1) allow the employer to decide whether or not to make and retain copies of documents confirming identity and work permission, (2) prescribe rules on re-verifying the continuing employment authorizing for workers with time-limited work permits, and (3) outline procedures for compliance with a government investigator’s demand to produce I-9s for inspection in the course of an audit. The forthcoming digital I-9 regulations must address these areas of intersection with the rules adopted in an era of paper I-9 forms. For now, however, employers should use the waiting time to reevaluate their I-9 compliance practices and decide just how far and how fast they intend to drive down the Digital I-9 Superhighway.
5. Will the Government Also Publish a New I-9 Form and a Streamlined List of Acceptable Documents When Issuing the New Digital I-9 Regulation?
In a perfect world, DHS’s immigration agencies would simultaneously issue a new Form I-9 and a Congressionally-mandated shorter list of acceptable documents of identity and employment eligibility when publishing the new electronic I-9 regulation. With a nod to Otto Von Bismark, the German Prussian politician, this writer suggests, however, that not only politics, but also government rulemaking, involves “the art of the possible.”
Although theoretically possible, if the history of delayed rulemaking offers any basis for prediction, then publication of a new I-9 form and shorter list of acceptable documents is not very likely by April, 2005. This means that employers desiring to go paperless may be required to adopt digital I-9 procedures in at least two phases. The first phase would entail a transition from the paper version of the form to an identical, digital version that also enables electronic-signature capability. The second phase, or later phases, may then entail the wholly digital capture of information and e-signatures in a searchable database.
6. What Software Applications Are Recommended When Driving down the Digital I-9 Superhighway?
The law of “employer sanctions” – of which I-9 regulations form only a part – has developed substantially since IRCA’s enactment in 1986. Numerous agency opinion letters, subsequent laws, and administrative and judicial decisions have provided answers to many questions not fully developed in the applicable regulations. Despite these developments, the I-9 form has changed only once since 1986, and not again in the 12 years since 1991.
The optimal electronic version of the I-9, therefore, would be interactive and include expert systems that take account of the evolving body of employer-sanctions law and prevent the completion of the form with incorrect or legally insupportable answers or signatures. The form would also be searchable across all data fields, and fully integrate with other popular payroll and HR software applications.
In the coming months, HR professionals can expect to be deluged by software product offerings that promise to simplify I-9 procedures, eliminate forests of paper files, and make legal compliance all but a few mouse clicks away. This author’s advice: Proceed slowly, thoughtfully and in step-at-a-time fashion. Take a lesson from the history of how other government agencies transitioned from a paper-based to a paperless world. Perhaps helpful, early guidance can be gleaned from an examination of federal agencies’ actions in implementing the “Electronic Signatures in Global and National Commerce Act” (P.L. 106-229) and the “Government Paperwork Elimination Act” (P.L. 105-277), as well as the Office of Management and Budget’s e-Government Strategy.
Until the successful vendors are sorted out, and the government publishes its technical parameters, however, the best interim way may be a simple, internal, proprietary system that adjusts to the needs and capabilities of the particular employer. Whether a PDF-based, easy solution will ultimately work, however, must await the government’s no-later-than-April rulemaking.
* * * * *
2 Employees are required to complete section 1 of Form I-9 no later than the first day of hire and attest (by checking off one of three boxes and signing and dating the section in the spaces provided) to the individual’s particular U.S. citizenship or immigration status and confirm the right to work in the United States. Employers must confirm in no less than three days from first hire, by completing and signing Section 2 and thereby attesting that the just-hired employee presented acceptable and seemingly genuine original documents that relate to the particular employee and confirm employment eligibility in this country. For reverification of the work authorization of existing employees with time-limited employment authorization, employers must sign an attestation (before the employee’s current work permission expires) confirming that the same individual again presented an original document or documents authorizing a new grant of employment permission.
3 A “fillable” version of Form I-9 can be found at: http://uscis.gov/graphics/formsfee/forms/i-9.htm.
4 The author expresses appreciation to attorney Linda Dodd-Major, formerly the Director of Office of Business Liaison, Immigration and Naturalization Service, for background information on this meeting.
5 For a list of questions that employers and their counsel should pose when considering an I-9 audit, see A. Lamdin, M. Patrick, R. Gump and A. Paparelli, “When Uncle Sam Knocks: Representing Employers Who Face or Fear Government Investigators,” Vol. 2, 1997-98 Immigration and Nationality Law Handbook (American Immigration Lawyers Association).
6 For an article on Sarbanes-Oxley Act and the new corporate sentencing guidelines, see R. Morvillo and R. Anello, “Corporate Compliance Programs: No Longer Voluntary,” New York Law Journal 3 (December 7, 2004).
8 See, e.g., A. Paparelli, Second Open Letter to the USCIS Ombudsman, Prakash Khatri, dated May 7, 2004 (available at http://www.nationofimmigrators.com ) asked that the Ombudsman pressure USCIS to reduce its other, less-visible backlog, namely, the year-long list of unpublished regulations.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.