Thanks to a new law that takes effect on April 28, 2005, businesses soon will have a new paperless option for their I-9 employment verification process for all new hires. 

What the New Law Provides

As we all know, it is the responsibility of all employers to verify a new hire's eligibility to work in the U.S.  Employers have three business days to obtain all identifying and eligibility information on employees and complete a Form I-9.  This form must be retained for at least three years at the site where the employee works or a central location, or one year from the day the employee terminates, whichever is later.

The completed I-9s must be stored in hard copy or microfilm/microfiche form.  Here is the change.  On October 30, 2004, President Bush signed a new law (H.R. 4306) that provides for the completion and storage of I-9s electronically. 

Under the new law, starting the end of April:

• An electronic signature may be used by both the employee and the employer to attest to an electronic Form I-9;
• Employers can maintain I-9s in PDF or other electronic formats; and
• Employers can convert and maintain existing paper I-9s into electronic formats.

Employers, however, must continue to personally verify original employment eligibility documents (or certified copies, in the case of birth certificates) in hard form.

When does the New I-9 Law Take Effect?

The new law takes effect either 180 days after enactment (which would be April 28, 2005) or the date on which final regulations implementing the Act are issued, whichever is earlier. 

It does not look like regulations will be forthcoming until much later this year, so we should plan to start using the electronic option on April 28.

Frequently Asked I-9 Questions

Q:      For whom do I need an I-9?

As a general rule, by law, all employers are required to complete and retain an I-9 Employment Eligibility Verification form for all employees (including U.S. citizens and non-citizens) hired to work in the United States after November 6, 1986.

Q:      Do I need an I-9 for every job applicant?

No.  You only need to obtain a completed I-9 for applicants that you actually hire.

Q:      Do I need an I-9 for independent contractors and their employees?

No, assuming that such individuals truly are "independent contractors" within the meaning of federal law.

Q:      How soon do I-9s need to be completed?

New employees must complete Section 1 of the I-9 no later than the close of business on their first day of work.  The employer, in turn, must complete Section 2 of the I-9 no later than the employee's third day of employment (i.e., within three business days of the date employment begins).

Q:      Can I complete an I-9 for new hires earlier?

Yes, provided that you complete I-9s for all new hires at the same point in the employment process.

Q:      What if I am only hiring an employee for less than three business days?

You must complete both Sections 1 and 2 of the I-9 no later than the close of business on the employee's first day of work. 

Q:      How can I obtain a copy of an I-9 for use?

Copies of the official Form I-9 can be ordered from the federal government at 1-800-870-3676 or downloaded online at www.uscis.gov under Forms and Fees.

Q:      Are I-9s available in Spanish and other foreign languages?

No.  Currently, I-9s and most other Citizenship and Immigration Services forms are published only in English.

Q:      Where and how do I file my I-9s?

Unlike EEO-1s and other federal employment forms, no filing is required.  I-9s need only be stored and maintained at the worksite to which they relate or, alternatively, at an employer's headquarters or other location.  However, whichever storage location is ultimately chosen, an employer must be able to deliver applicable I-9s to a given worksite within three days (72 hours) when requested by the Citizenship and Immigration Service, the Department of Labor, or other applicable governmental agencies.

Q:      How long must I store I-9s?

Employers are required to maintain I-9 records on file for three years from an employee's date of hire or one year after an employee's separation from his or her employment with the company, whichever is later.  Thus, employers are required to keep I-9s for: (a) all current employees, and (b) all separated/terminated employees within the retention period.

Q:      Can I simply store my I-9s in each employee's personnel file?

Current U.S. immigration law does not require or prohibit the storage of I-9s in personnel files.  However, it may be difficult for large employers to meet a 3-day deadline for production if such records are stored in individual files.  In addition, because employers are also required to maintain I-9s for certain separated/terminated employees within the retention period noted above, as a practical matter, most employers maintain I-9s as a group separate and apart from personnel files, divided into two categories - (1) current employees, and (2) former employees within the retention period.