DHS Issues New I-9 Guidelines
The Dept of Homeland Security (DHS) has authorized the use of electronic signature and storage of Forms I-9 as well as proposing new guidelines for employers that receive no-match letters from the Social Security Administration (SSA). Both changes could impact pallet companies looking to update their worker eligibility verification procedures for new hires.
By Chaille Brindley
Date Posted: 11/1/2006
The Department of Homeland Security (DHS) has authorized the use of electronic signature and storage of Form I-9 as well as proposing new guidelines for employers that receive no-match letters from the Social Security Administration (SSA). Both changes could impact pallet companies looking to update their worker eligibility verification procedures for new hires. This has become a hot topic due to increased enforcement by DHS and the IFCO raids earlier this year.
Under the old procedures, employers were required to keep paper, microfilm or microfiche copies of the Forms I-9. The new policies allow for electronic signatures and electronic storage in common formats , such as the Portable Document Format (PDF). Employers are now permitted to electronically scan and store existing Forms I-9 as long as certain standards are met. DHS is using the most widely applicable standards , those adopted by the Internal Revenue Service (IRS) for tax records.
Businesses will be permitted to adopt one or more of a number of different electronic recordkeeping, attestation, and retention systems that comply with IRS standards. Employers who already utilize electronic data recordkeeping as part of their accounting and tax functions may expand those functions to include the employment verification process. As long as the electronic records system remains IRS-compliant, the system will be compliant with Immigration & Customs Enforcement policies.
Many employers may experience cost savings by storing Forms I-9 electronically rather than using conventional filing and storage of paper copies or transferring the forms to microfilm or microfiche. Also, electronically stored forms are more easily searched .
For some employers, particularly small employers, retaining the paper Form I-9 may continue to be the most cost-effective and efficient storage method. This rule does not eliminate this option, change the process or discourage employers from using paper-based records.
Another major concern that DHS has addressed is the process for reconciling data submitted to and verified by the SSA. It can be fairly common for employers to receive notification that there are errors with Social Security data provided on a particular employee. This can result from a simple clerical error, a name change, or employees presenting wrong or false information.
According to federal law, “It is unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien in the
The term “knowing” includes not only actual knowledge but also constructive knowledge which would lead a person to reasonably conclude that person is not authorized to work in the
DHS has clarified the legal obligations of employers that receive a no-match letter from SSA or DHS. Basically, DHS has stated that employers who do not take any action after receiving a no-match letter may be found to have had constructive knowledge of the work status of the employee.
The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in a situation will depend on the totality of relevant circumstances. This gives DHS wiggle room to interpret each situation as it sees fit. But if a company follows the procedures outlined in the new rules, the DHS would have a difficult time making a case in court that the employer or its management did anything wrong.
The proposed rule suggests that reasonable employers would take the following steps after receiving a no-match letter.
Guidelines for Electronic Form I-9 Signature & Storage
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