[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Rules and Regulations]
[Pages 34510-34517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9283]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Immigration and Customs Enforcement

8 CFR Part 274a

[BICE 2345-05; DHS-2005-0046]
RIN 1653-AA47


Electronic Signature and Storage of Form I-9, Employment 
Eligibility Verification

AGENCY: Bureau of Immigration and Customs Enforcement, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Department of Homeland Security 
regulations to provide that employers and recruiters or referrers for a 
fee who are required to complete and retain Forms I-9, Employment 
Eligibility Verification, may sign and retain these forms 
electronically. This interim rule implements statutory changes to the 
Form I-9 retention requirements by establishing standards for 
electronic signatures and the electronic retention of the Form I-9.

DATES: Effective Date: This interim rule is effective June 15, 2006.
    Comment Date: Written comments must be submitted on or before 
August 14, 2006.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Jim Knapp, Associate Legal Advisor, Bureau of 
Immigration and Customs Enforcement, Room 6100, 425 I. St., NW., 
Washington, DC 20536.

FOR FURTHER INFORMATION CONTACT: Jim Knapp, Associate Legal Advisor, 
Bureau of Immigration and Customs Enforcement, Room 6100, 425 I St., 
NW., Washington, DC 20536. Telephone (202) 514-8138 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION

I. Background

A. Employment Eligibility Verification Requirement

    Section 274A of the Immigration and Nationality Act (Act), 8 U.S.C. 
1324a, requires all United States employers, agricultural associations, 
agricultural employers, farm labor contractors, or persons or other 
entities who recruit or refer persons for employment for a fee, to 
verify the employment eligibility and identity of all employees hired 
to work in the United States after November 6, 1986. To comply with the 
law, an employer, or a recruiter or referrer for a fee, is responsible 
for the completion of an Employment Eligibility Verification form (Form 
I-9) for all employees, including United States citizens. 8 CFR 274a.2.
    Completed Forms I-9 are not filed with the Federal Government; 
instead, the completed I-9 form is retained by the employer. Employers 
are required to retain Forms I-9 in their own files for three years 
after the date of hire of the employee or one year after the date that 
employment is terminated, whichever is later. 8 CFR 274a.2(c)(2). 
Recruiters or referrers for a fee are required to retain the Forms I-9 
for three years after the date of hire. Id. at (d)(2). The failure to 
properly complete and retain the Forms I-9 subjects the employer to 
civil money penalties. Section 274A of the Act, 8 U.S.C. 1324a(e)(5).

B. Format of the Form I-9

    Form I-9 has been made available to the public in numerous paper 
and electronic means since 1986. The Form I-9 is currently available 
online at the U.S. Citizenship and Immigration Services (USCIS) Web 
site at (http://www.uscis.gov) as a Portable Document Format (.pdf) 
fillable--printable form http://uscis.gov/graphics/formsfee/forms/files/i-9.pdf. In short, an employer or employee can retrieve the form, 
type the required information into it for a prospective employee, and 
print it. The form may then be retained in paper, microfilm, or 
microfiche form. In conjunction with this interim rule, the Department 
of Homeland Security (DHS) is upgrading the downloadable PDF version of 
Form I-9 to enable employers and employees to electronically sign and 
save the filled Form I-9. This provides employers an additional option 
for convenience and savings. This PDF version of Form I-9 complies with 
the electronic form requirements of this rule.
    However, existing DHS regulations do not permit the form to be 
completed and stored electronically as an original record. On October 
30, 2004, Public Law 108-390, 11 Stat. 2242, authorized employers to 
retain Forms I-9 in electronic format, effective April 29, 2005, or the 
effective date of implementing regulations, whichever occurred first. 
The legislation also allows employers and employees to manifest 
attestations using electronic signature technology.
    This interim rule conforms the regulations to the requirements of 
Public Law 108-390 and permits employers to complete, sign, and store 
Forms I-9 electronically, as long as certain performance standards set 
forth in this interim rule for the electronic filing system are met. 
This interim rule also permits employers to electronically scan and 
store existing Forms I-9, as long as standards set forth in this 
interim rule for the electronic storage system are met. The interim 
rule adopts performance standards that have been proven by other 
agencies in the past and provides flexibility for employers to choose a 
method of retention that is the most economically feasible for their 
specific business. Utilizing the most widely applicable standards, 
those adopted by the Internal Revenue Service (IRS) for tax records, 
provides the widest possible cost savings within the business community 
because of existing compliance with those standards.

C. Electronic Recordkeeping Standards

    There is no single United States Government-wide electronic 
recordkeeping standard for recordkeeping by private individuals and 
entities. However, some United States Government agencies provide 
electronic recordkeeping standards for use in transactions with that 
agency. These standards provide a baseline for proven practices. To the 
extent that these standards are applicable to the electronic storage of 
Form I-9, DHS attempts to use the requirements and language of existing 
standards. At the same time, DHS recognizes that systems for electronic 
recordkeeping develop rapidly with the creation of new storage 
mechanisms, mediums, and methods. Accordingly, the standards adopted in 
this rule are ``product neutral'' and will guide the application of new 
products to meet minimum performance standards, rather than 
establishing specific requirements.

[[Page 34511]]

    The Internal Revenue Service's Rev. Proc. 97-22, 1997-1 C.B. 652, 
1997-13 I.R.B. 9 (March 31, 1997), and Rev. Proc. 98-25, 1998-1 C.B. 
689, 1998-11 I.R.B. 7 (March 16, 1998), specify electronic 
recordkeeping standards for taxpayers. This regulation closely follows 
the widely accepted electronic storage standards and requirements set 
forth in the IRS Rulings previously published. The derivation of the 
substantive standards of this interim rule is set forth below.

Derivation of Substantive Standards for Electronic Retention of Form I-9
------------------------------------------------------------------------
                                  Source of
    Provision of this rule        provision     Description of provision
------------------------------------------------------------------------
8 CFR 274a.2(e)(1)...........  Rev. Proc. 97-   Requirements for the
                                22, section      electronic generation
                                4.01(2).         or storage system.
8 CFR 274a.2(e)(2)...........  Rev. Proc. 97-   Requires reproduced
                                22, section      documents to exhibit a
                                4.01(3).         high degree of
                                                 legibility and
                                                 readability.
8 CFR 274a.2(e)(3)...........  Rev. Proc. 97-   Requires that any
                                22, section      electronic storage
                                4.01(7).         system must not be
                                                 subject to any
                                                 agreement that would
                                                 limit or restrict the
                                                 relevant Government
                                                 personnel's access or
                                                 use on the premises.
8 CFR 274a.2(e)(4)...........  Rev. Proc. 97-   Allows use of multiple
                                22, section      electronic systems so
                                4.01(9).         long as each meets the
                                                 relevant standards.
8 CFR 274a.2(e)(5)...........  Rev. Proc. 97-   Requires that
                                22, section      descriptions of the
                                4.01(5).         system, including
                                                 procedures for use and
                                                 indexing systems, be
                                                 maintained and made
                                                 available upon request.
8 CFR 274a.2(e)(6)...........  Rev. Proc. 97-   Defines indexing system
                                22, section      that complies with
                                4.02(1).         requirements.
8 CFR 274a.2(e)(7)...........  Rev. Proc. 97-   Permits reasonable data
                                22, section      compression and
                                4.01(10).        formatting
                                                 technologies.
8 CFR 274a.2(e)(8)...........  Rev. Proc. 97-   Requirements for
                                22, section      inspection.
                                4.01(6).
------------------------------------------------------------------------

    The widespread application of these IRS standards by the business 
community is the critical reason for adoption of these standards. This 
adoption of existing standards should reduce any potential burden on 
the portion of the business community that decides to utilize 
electronic retention.
    In 17 CFR 240.17a4, the Securities and Exchange Commission (SEC) 
specifies electronic recordkeeping standards for certain exchange 
members, brokers and dealers. DHS did not incorporate specific language 
from the SEC provisions; however, it did find them instructive on how 
to establish electronic systems. In particular, 8 CFR 240.17a4(f) 
provides instruction on audit and indexing systems that employers could 
find helpful when complying with the similar provisions set forth in 
this regulation.
    Also instructive are the regulations of the National Archives and 
Records Administration found in 36 CFR part 1234, which set standards 
for federal agencies to use in order to enhance the trustworthiness of 
an agency's own electronic records and their admissibility as evidence 
in court proceedings. Employers utilizing electronic retention and 
signature technology for Form I-9 may find it helpful to review system 
requirements placed upon Federal agencies. These standards define terms 
of art related to the requirements of this regulation and provide 
information that could help guide businesses establish security and 
maintenance procedures for electronic records.
    Using precedents set by 36 CFR part 1234 and other United States 
Government agencies, this interim rule provides a reasonable set of 
standards for creating a trustworthy system for Form I-9 completion and 
storage. The standards are technology neutral, and allow businesses the 
flexibility to keep records in a manner consistent with other business 
processes. They also provide DHS investigators with a framework for 
inspecting the records and assessing their trustworthiness.
    DHS is working with the IRS to develop audit protocols to minimize 
requirements on businesses to provide information from Forms I-9 when 
the DHS Bureau of Immigration and Customs Enforcement (ICE) determines 
that audit and review is necessary.

D. Development of the Rule

    After the President signed Public Law 108-390, a working group was 
established within DHS, consisting of representatives from ICE and 
USCIS. This regulation was developed, drawing upon work begun under the 
legacy Immigration and Naturalization Service, as well as relying on 
standards developed by other Federal agencies utilizing electronic 
retention and signature methods. On December 10, 2004, at the request 
of the United States Chamber of Commerce, DHS representatives met with 
the Electronic I-9 Coalition. This Coalition consisted of 
representatives from a wide array of business interests. The Chamber of 
Commerce facilitated the meeting so the Coalition members could express 
views to DHS regarding the importance of the statute and to offer 
insight on methods of storage and attestation being contemplated by the 
business community. DHS representatives listened to the views 
presented, but could not offer any guidance on specific aspects of the 
regulation. DHS has carefully considered the views expressed and, to 
the extent practical and in the public interest, incorporated those 
suggestions. There are a number of potential advantages that employers 
may gain through use of electronic Forms I-9. 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. Electronic forms may allow 
employers to better ensure that each Form I-9 is properly completed and 
retained. Some employers may find that electronic completion and 
storage renders the process less prone to error. Electronically 
retained Forms I-9 are more easily searchable, which is important for 
re-verification, quality assurance and inspection purposes. This will 
be especially helpful and cost-effective for large employers that have 
job sites across the country or that have high employee turnover rates.
    On April 26, 2005, a fact sheet was published on the ICE Web site 
to provide information on the development of the regulation based on 
IRS Revenue Procedure 97-22. The fact sheet included suggested 
standards established by IRS, and advantages for using electronic 
signature and retention of Form I-9.

E. Employer Compliance

    An employer that is currently complying with the recordkeeping and 
retention requirements of current 8 CFR 274.2 is not required to take 
any additional or different action to comply

[[Page 34512]]

with the revised rules. The revised rules offer an additional option. 
Businesses will be permitted to adopt one or more of a number of 
different electronic recordkeeping, attestation, and retention systems 
that are compliant with the existing IRS standards.
    For example, a small business may wish to download and retain .pdf 
versions of the employment verification record. DHS made this system 
available on the USCIS Web site.
    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 ICE-compliant.

F. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. DHS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
proposed rule. Comments that will provide the most assistance to DHS in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the street at the address noted above by 
making an appointment with the individual listed as the individual to 
contact for further information.

II. Regulatory Requirements

A. Administrative Procedure Act (Good Cause Exception)

    Implementation of this rule as an interim rule effective on June 
15, 2006, with a request for public comment after the effective date of 
the rule is based upon the ``good cause'' exceptions found under the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B) and (d)(3). DHS 
has determined that delaying implementation of this rule until after a 
period for public notice and comment, analysis of the public comments 
(if any), preparation of a final rule, and providing a delayed post-
publication effective date of at least 30 days, are impracticable and 
contrary to the public interest for the following reasons:
    This regulation adopts existing, widely-utilized standards for 
electronic recordkeeping to permit any employer who is required to 
retain Form I-9, to retain that form in an electronic format. Because 
of the widespread application of the same rules required to establish 
taxable income and other matters within the jurisdiction of the IRS in 
the larger accounting context, it is impractical to adopt differing 
rules for a specific set of employment forms. Accordingly, providing an 
opportunity for notice and comment on whether to adopt such widely 
accepted standards is impractical and unnecessary. Also, the rule 
provides additional optional methods for complying with an existing 
requirement. The methods may be utilized or not utilized, in the 
discretion of the employer. Therefore, a delayed effective date is not 
necessary.
    DHS recognizes that the effective date of the underlying statute 
authorizing electronic retention of Form I-9 was April 28, 2005. DHS 
will not require that forms created between that date and the effective 
date of the rule must comply with this rule. If an audit of such 
records is required, DHS will permit the employer to provide the forms 
in paper form; this rule does not require that any employer use an 
electronic record keeping system.
    Moreover, as far as DHS can determine at this time, ``off the 
shelf'' computer programs and commercial automated data processing 
systems in use comply with the standards required by this rule. DHS is 
not aware of systems that would not immediately be useable under the 
regulations.
    Accordingly, DHS finds that no employer required to retain Form I-9 
would be adversely affected by the adoption of this rule without pre-
promulgation notice and comment or a delayed effective date.
    DHS nevertheless invites comments on this interim rule and will 
consider all timely comments in the preparation of a final rule. In 
particular, DHS is interested in identifying whether any existing 
systems for electronic record keeping do not comply with these 
standards in order to adjust the standards or provide a means to 
resolving any discrepancies.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) mandates that DHS conduct an 
RFA analysis when an agency is ``required by section 553, or any other 
law, to publish general notice of proposed rulemaking for any proposed 
rule.'' 5 U.S.C. 603(a). RFA analysis is not required when a rule is 
exempt from notice and comment rulemaking under 5 U.S.C. 553(b). DHS 
has determined that good cause exists under 5 U.S.C. 553(b)(B) to 
exempt this rule from the notice and comment requirements of 5 U.S.C. 
553(b). Therefore, no RFA analysis under 5 U.S.C. 603 is required for 
this rule.

C. Unfunded Mandates Reform Act of 1995

    This interim rule will not result in an expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This interim rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
interim rule will not result in an annual effect of $100 million or 
more on the economy; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets. Since utilizing electronic signature and storage 
technologies are optional, DHS expects that small businesses will only 
choose electronic methods if they will save costs and/or lessen overall 
burden. Providing this option should, therefore, have a net cost-saving 
effect to small businesses.

E. Executive Order 12866 (Regulatory Planning and Review)

    This interim rule is considered by DHS to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, the rule has been 
submitted to the Office of Management and Budget (OMB) for review.
    DHS has assessed both the cost and benefits of this interim rule as 
required by Executive Order 12866 section 1(b)(6), and has made a 
reasoned determination that the benefits of this interim rule justify 
its costs to the public and Government. In fact, DHS anticipates that 
both the public and

[[Page 34513]]

Government will experience a net cost savings as a result of this rule. 
Whether to store Forms I-9 in an electronic format will be within the 
discretion of the employer or the recruiter or referrer for a fee--
those that are already required under 8 CFR 274a.2 to retain the Forms 
I-9.
    The number of Forms I-9 maintained throughout the country is 
extremely large. Storage of Forms I-9 to meet the statutory retention 
requirement may require the employer to make a significant investment 
in personnel and storage space. Currently, storage costs for the paper 
Form I-9 vary, depending on the storage facility used and the number of 
Forms I-9 that must be stored. DHS believes that Form I-9 storage costs 
are highest with large employers or those who have a high employee 
attrition rate. At an estimated employer total labor cost of $20 per 
hour, employer burden savings are estimated to be $13,000,000 annually. 
DHS considers this a conservative estimate, which is based on agency 
experience since the Form I-9 requirement was implemented. Further, we 
expect that some employers will have capital costs at the outset, 
depending on the size and complexity of the system chosen. DHS is 
unable to estimate possible capital costs as these could vary widely as 
employers implement a range of electronic options, from simply using a 
scanner to electronically retain a completed Form I-9 to a complex 
database that facilitates electronic completion, attestation, 
retention, production, etc.
    Employers utilizing electronic Forms I-9 will bear additional costs 
associated with the documentation that this rule requires to establish 
the integrity of the electronic Form I-9 process chosen. This is an 
initial cost to the employer and will vary depending on the 
sophistication and capacity of each system deployed. The documentation 
necessary should accompany the software and hardware being used by the 
employer to implement the electronic Form I-9.
    For employers responsible for a significant number of Forms I-9, 
these costs are expected to be lower than the costs associated with 
retaining Forms I-9 in paper format. For employers who do not have a 
large number of Forms I-9 to retain, utilizing an electronic Form I-9 
may not be economical. However, the benefits of using an electronic 
Form I-9 extend beyond storage space. DHS believes that employers using 
electronic Forms I-9 will improve their accuracy rate. By completing 
and/or storing Forms I-9 electronically, employers will be better able 
to self-audit Forms I-9 in order to detect and correct errors. 
Employers could create an electronic process for Form I-9 completion 
that minimizes the possibility of errors. The process could include 
prompts that preclude the user from completing the rest of the form 
until an acceptable response is provided. Employers would also be 
better able to create a reliable system to re-verify an employee's 
employment authorization when it is about to expire. The forms could be 
stored on a computer maintained onsite rather than in boxes off-site or 
other difficult-to-access locations, which DHS has observed when 
conducting past Form I-9 audits. Electronically stored forms could be 
presented for review in a matter of minutes rather than the lengthy 
period required to access paper or microfiche archives. While employers 
converting to an electronic Form I-9 format may incur initial costs, 
DHS anticipates that employers who use an electronic Form I-9 system 
tailored to their needs will generally achieve a net cost-savings in 
both the short term and long term. In addition, DHS anticipates that 
its Form I-9 audits will reveal a lower error rate. This should 
translate into a more efficient employment eligibility verification 
process for employers and, therefore, a lower incidence of unauthorized 
workers in the workplace. In recent years, DHS has received many 
queries from the employer community regarding the possibility of using 
electronic Forms I-9, with electronic attestation, and storing the 
forms electronically. Employers have expressed their frustration with 
the requirement to keep paper forms or maintain the forms on microfilm 
or microfiche when all other aspects of their businesses have been 
automated.
    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 or discourage 
employers from using it. The paper Form I-9 has the advantage of 
recording the unique signature of the employee and of the employer 
representative. This interim rule does not make any change to the 
current paper Form I-9 process. Additionally, employers can utilize a 
combination of paper and electronic methods for fulfilling the Form I-9 
requirements. For example, an employer can complete the paper Form I-9 
and use a scanner to retain electronically. Conversely, an employer can 
choose to complete the Form I-9 electronically and retain the printed 
form.
    For the Government, amending the regulations to permit the 
electronic signatures and retention of Form I-9 has many advantages, 
particularly with respect to DHS's enforcement efforts. When conducting 
audits, DHS will be able to receive Forms I-9 electronically, rather 
than using staff resources to physically appear at a worksite. Once the 
Form I-9 data is received electronically, DHS will have increased 
flexibility in how it reviews and analyzes them. DHS will be able to 
more easily compare data among multiple audits to locate unauthorized 
workers, and store audit records for easy access. When investigating 
the presence of unauthorized workers in the workplace, employers 
violating the immigration laws, or national security risks, DHS will 
have this information immediately available and with less risk of human 
error. Additionally, there are circumstances in which the Department of 
Labor and the Department of Justice, Office of Special Counsel for 
Immigration-Related Unfair Employment Practices, access Forms I-9 in 
order to exercise their responsibilities.
    DHS anticipates that its own additional costs will be minimal. DHS 
currently inputs Form I-9 information manually into a database. If an 
employer chooses to electronically retain Form I-9, then the rule's 
requirement that Form I-9 information be presented in a particular 
electronic format will enable the electronic transfer of information 
from employer to DHS to be nearly instantaneous. Therefore, rather than 
invest DHS investigator time in data entry, investigators will be free 
to conduct more-thorough investigations.
    Once employers begin to utilize electronic Forms I-9 and the 
various electronic Form I-9 storage options, DHS will be able to better 
gauge what additional or alternative database and storage options would 
further increase the efficiency of its investigations. At present, DHS 
will utilize current systems to implement this rule.
    This rule does not limit employers to using one system for the 
storage of Forms I-9 electronically, nor does it identify one method 
for acceptable electronic signatures. Instead, this rule seeks to set 
acceptable standards for employers. Electronic signatures can be 
accomplished using various technologies including, but not limited to, 
electronic signature pads, Personal Identification Numbers (PIN), 
biometrics, and ``click to accept'' dialog boxes. DHS considered 
specifying acceptable technologies, but rejected this alternative as 
being too inflexible for employers' needs and economic means. Moreover, 
to specify a particular technology would require continuous

[[Page 34514]]

amendments to the regulations reflecting the rapid changes in 
technology. DHS concluded that this approach would be impractical and 
detrimental to employers since it would require continuous and 
potentially costly changes to employers' business practices.

F. Executive Order 13132 (Federalism)

    This interim rule will not have a substantial direct effect on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this interim rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., 
all Departments are required to submit any reporting or recordkeeping 
requirements inherent in a rule to the Office of Management and Budget 
(OMB) for review and approval. This interim rule requires employers to 
complete the Form I-9 which has been approved for use by OMB (OMB 
Control Number 1615-0047); it also permits the employer to continue to 
retain the Form I-9 in paper, microfiche, or microfilm, and allows a 
new option: to retain the Form I-9 electronically. The DHS believes 
that storing the I-9 electronically will reduce the burden on 
businesses by 650,000 hours (see discussion below). Accordingly, DHS 
submitted the required Paperwork Reduction Change Worksheet (OMB-83C) 
to the Office of Management and Budget (OMB) reflecting the reduction 
in burden hours for Form I-9, and the OMB has approved the changes.
    DHS estimates that there will be a total of 78,000,000 respondents 
annually who will complete the required Form I-9 in either paper or 
electronic format. DHS has estimated that it takes 9 minutes to gather 
the required evidence to complete the paper Form I-9 and an additional 
4 minutes for employer verification, filing and storage. Because this 
regulation is technology neutral, it is difficult for DHS to estimate 
the average time required to complete a Form I-9 electronically, as 
completion methods may vary widely depending upon the range of systems 
implemented by employers. However, DHS does not believe the time per 
respondent will change significantly as the documentation required is 
unchanged. Many businesses could reduce the time burden by using an 
electronic Form I-9, as the documentation could be collected from an 
employee in conjunction with other types of personnel forms (i.e., tax 
withholding forms, insurance and other benefit forms) that require 
similar personal information.
    For employers who choose electronic retention methods for the Form 
I-9, DHS does expect a burden reduction. DHS previously estimated that 
employers spend four minutes per form to verify and file. We project 
that half of the estimated 78,000,000 Forms I-9 completed annually will 
involve some method of electronic generation or retention. Employers 
utilizing at least a partial electronic process for retention of the 
Form I-9 should save a minimum of one minute of burden time per form 
based on the previous estimate of 4 minutes per form for verification 
and filing. Based on 39,000,000 Forms I-9, the total labor hours saved 
would be 650,000 hours annually.
    Under 8 CFR 274a.2(e) through (i), any employer who stores Form I-9 
electronically or any employer that applies an electronic signature to 
the Form I-9 must demonstrate that its electronic storage system is 
properly maintained and protected against tampering, and that any 
electronic signature can be authenticated. In addition, an employer or 
entity who chooses to complete and/or retain Forms I-9 electronically 
must maintain, and make available to the Department upon request, 
documentation of the business process that: (1) Creates the retained 
Forms I-9; (2) Modifies and maintains the retained Forms I-9; and (3) 
Establishes the authenticity and integrity of the Forms I-9, such as 
audit trails. These additional requirements are considered information 
collections under the Paperwork Reduction Act. These requirements are 
reflected in the Paperwork Reduction Change Worksheet (Form OMB 83-C) 
that has been submitted to OMB and that specifies the estimated net 
reduction in burden hours that will result from this rule.

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

0
Accordingly, part 274a of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

0
2. Section 274a.2 is amended:
0
a. By revising paragraph (a);
0
b. By revising paragraph (b)(1)(i)(A);
0
c. By revising paragraph (b)(1)(ii)(B);
0
d. By revising the last sentence in paragraph (b)(1)(iv);
0
e. By revising the last sentence of paragraph (b)(1)(vii);
0
f. By revising paragraph (b)(2)(i) introductory text;
0
g. By revising paragraph (b)(2)(ii);
0
h. By adding paragraph (b)(2)(iv);
0
i. By revising paragraph (b)(3);
0
j. By adding the term ``or electronic images'' immediately after 
``copies'' in paragraph (b)(4); and
0
k. By adding new paragraphs (e), (f), (g), (h), and (i).
    The revisions and additions read as follows:


Sec.  274a.2  Verification of employment eligibility.

    (a) General. This section establishes requirements and procedures 
for compliance by persons or entities when hiring, or when recruiting 
or referring for a fee, or when continuing to employ individuals in the 
United States.
    (1) Recruiters and referrers for a fee. For purposes of complying 
with section 274A(b) of the Act and this section, all references to 
recruiters and referrers for a fee are limited to a person or entity 
who is either an agricultural association, agricultural employer, or 
farm labor contractor (as defined in section 3 of the Migrant and 
Seasonal Agricultural Worker Protection Act, Pub. L. 97-470 (29 U.S.C. 
1802)).
    (2) Verification form. Form I-9, Employment Eligibility 
Verification Form, is used in complying with the requirements of this 8 
CFR 274a.1--274a.11. Form I-9 can be in paper or electronic format. In 
paper format, the Form I-9 may be obtained in limited quantities at 
USCIS district offices, or ordered from the Superintendent of 
Documents, Washington, DC 20402. In electronic format, a fillable 
electronic Form I-9 may be downloaded from http://www.uscis.gov. 
Alternatively, Form I-9 can be electronically generated or retained, 
provided that the resulting form is legible; there is no change to the 
name, content, or sequence of the data elements and instructions; no 
additional

[[Page 34515]]

data elements or language are inserted; and the standards specified 
under 8 CFR 274a.2(e), (f), (g), (h), and (i), as applicable, are met. 
When copying or printing the paper Form I-9, the text of the two-sided 
form may be reproduced by making either double-sided or single-sided 
copies.
    (3) Attestation Under Penalty and Perjury. In conjunction with 
completing the Form I-9, an employer or recruiter or referrer for a fee 
must examine documents that evidence the identity and employment 
eligibility of the individual. The employer or recruiter or referrer 
for a fee and the individual must each complete an attestation on the 
Form I-9 under penalty of perjury.
    (b) * * *
    (1) * * *
    (i) * * *
    (A) Completes section 1--``Employee Information and 
Verification''--on the Form I-9 at the time of hire and signs the 
attestation with a handwritten or electronic signature in accordance 
with paragraph (h) of this section; or if an individual is unable to 
complete the Form I-9 or needs it translated, someone may assist him or 
her. The preparer or translator must read the Form I-9 to the 
individual, assist him or her in completing Section 1--``Employee 
Information and Verification,'' and have the individual sign or mark 
the Form I-9 by a handwritten signature, or an electronic signature in 
accordance with paragraph (h) of this section, in the appropriate 
place; and
* * * * *
    (ii) * * *
    (B) Complete section 2--``Employer Review and Verification''--on 
the Form I-9 within three days of the hire and sign the attestation 
with a handwritten signature or electronic signature in accordance with 
paragraph (i) of this section.
* * * * *
    (iv) * * * If a recruiter or referrer designates an employer to 
complete the employment verification procedures, the employer need only 
provide the recruiter or referrer with a photocopy or printed 
electronic image of the Form I-9, electronic Form I-9, or a Form I-9 on 
microfilm or microfiche.
* * * * *
    (vii) * * * The employer or the recruiter or referrer for a fee 
must review this document, and if it appears to be genuine and relate 
to the individual, re-verify by noting the document's identification 
number and expiration date, if any, on the Form I-9 and signing the 
attestation by a handwritten signature or electronic signature in 
accordance with paragraph (i) of this section.
* * * * *
    (2) * * *
    (i) A paper (with original handwritten signatures), electronic 
(with acceptable electronic signatures that meet the requirements of 
paragraphs (h) and (i) of this section or original paper scanned into 
an electronic format that meets the requirements of 8 CFR 274a.2(e), 
(f), and (g)), or microfilm or microfiche copy of the original signed 
version of the Form I-9 must be retained by an employer or a recruiter 
or referrer for a fee for the following time periods:
* * * * *
    (ii) Any person or entity required to retain Forms I-9 in 
accordance with this section shall be provided with at least three days 
notice prior to an inspection of the Forms I-9 by officers of an 
authorized agency of the United States. At the time of inspection, 
Forms I-9 must be made available in their original paper, electronic 
form, a paper copy of the electronic form, or on microfilm or 
microfiche at the location where the request for production was made. 
If Forms I-9 are kept at another location, the person or entity must 
inform the officer of the authorized agency of the United States of the 
location where the forms are kept and make arrangements for the 
inspection. Inspections may be performed at an office of an authorized 
agency of the United States. A recruiter or referrer for a fee who has 
designated an employer to complete the employment verification 
procedures may present a photocopy or printed electronic image of the 
Form I-9 in lieu of presenting the Form I-9 in its original paper or 
electronic form or on microfilm or microfiche, as set forth in 
paragraph (b)(1)(iv) of this section. Any refusal or delay in 
presentation of the Forms I-9 for inspection is a violation of the 
retention requirements as set forth in section 274A(b)(3) of the Act. 
No Subpoena or warrant shall be required for such inspection, but the 
use of such enforcement tools is not precluded. In addition, if the 
person or entity has not complied with a request to present the Forms 
I-9, any officer listed in 8 CFR 287.4 may compel production of the 
Forms I-9 and any other relevant documents by issuing a subpoena. 
Nothing in this section is intended to limit the subpoena power under 
section 235(a) of the Act.
* * * * *
    (iv) Paragraphs (e), (f), (g), (h), and (i) of this section specify 
the standards for electronic Forms I-9.
    (3) Copying of documentation. An employer, or a recruiter or 
referrer for a fee may, but is not required to, copy or make an 
electronic image of a document presented by an individual solely for 
the purpose of complying with the verification requirements of this 
section. If such a copy or electronic image is made, it must be 
retained with the Form I-9. The copying or electronic imaging of any 
such document and retention of the copy or electronic image does not 
relieve the employer from the requirement to fully complete section 2 
of the Form I-9. An employer, recruiter or referrer for a fee should 
not, however, copy or electronically image only the documents of 
individuals of certain national origins or citizenship statuses. To do 
so may violate section 274B of the Act.
    (4) Limitation on use of Form I-9. Any information contained in or 
appended to the Form I-9, including copies or electronic images of 
documents listed in paragraph (c) of this section used to verify an 
individual's identity or employment eligibility, may be used only for 
enforcement of the Act and 18 U.S.C. 1001, 1028, 1546, or 1621.
* * * * *
    (e) Standards for electronic retention of Form I-9. (1) Any person 
or entity who is required by this section to complete and retain Forms 
I-9 may complete or retain electronically Form I-9 in an electronic 
generation or storage system that includes:
    (i) Reasonable controls to ensure the integrity, accuracy and 
reliability of the electronic generation or storage system;
    (ii) Reasonable controls designed to prevent and detect the 
unauthorized or accidental creation of, addition to, alteration of, 
deletion of, or deterioration of an electronically completed or stored 
Form I-9, including the electronic signature if used;
    (iii) An inspection and quality assurance program evidenced by 
regular evaluations of the electronic generation or storage system, 
including periodic checks of the electronically stored Form I-9, 
including the electronic signature if used;
    (iv) In the case of electronically retained Forms I-9, a retrieval 
system that includes an indexing system that permits searches by any 
data element; and
    (v) The ability to reproduce legible and readable hardcopies.
    (2) All documents reproduced by the electronic retention system 
must exhibit a high degree of legibility and readability when displayed 
on a video display terminal or when printed on paper, microfilm, or 
microfiche. The term ``legibility'' means the observer must be able to 
identify all letters and

[[Page 34516]]

numerals positively and quickly, to the exclusion of all other letters 
or numerals. The term ``readability'' means that the observer must be 
able to recognize any group of letters or numerals that form words or 
numbers as those words or complete numbers. The employer, or recruiter 
or referrer for a fee, must ensure that the reproduction process 
maintains the legibility and readability of the electronically stored 
document.
    (3) An electronic generation or storage system must not be subject, 
in whole or in part, to any agreement (such as a contract or license) 
that would limit or restrict access to and use of the electronic 
generation or storage system by an agency of the United States, on the 
premises of the employer, recruiter or referrer for a fee (or at any 
other place where the electronic generation or storage system is 
maintained), including personnel, hardware, software, files, indexes, 
and software documentation.
    (4) A person or entity who chooses to complete or retain Forms I-9 
electronically may use more than one electronic generation or storage 
system. Each electronic generation or storage system must meet the 
requirements of this paragraph, and remain available as long as 
required by the Act and these regulations.
    (5) For each electronic generation or storage system used, the 
person or entity retaining the Form I-9 must maintain, and make 
available upon request, complete descriptions of:
    (i) The electronic generation and storage system, including all 
procedures relating to its use; and
    (ii) The indexing system.
    (6) An ``indexing system'' for the purposes of paragraphs 
(e)(1)(iv) and (e)(5) of this section is a system that permits the 
identification and retrieval for viewing or reproducing of relevant 
books and records maintained in an electronic storage system. For 
example, an indexing system might consist of assigning each 
electronically stored document a unique identification number and 
maintaining a separate database that contains descriptions of all 
electronically stored books and records along with their identification 
numbers. In addition, any system used to maintain, organize, or 
coordinate multiple electronic storage systems is treated as an 
indexing system. The requirement to maintain an indexing system will be 
satisfied if the indexing system is functionally comparable to a 
reasonable hardcopy filing system. The requirement to maintain an 
indexing system does not require that a separate electronically stored 
books and records description database be maintained if comparable 
results can be achieved without a separate description database.
    (7) Any person or entity choosing to retain completed Forms I-9 
electronically may use reasonable data compression or formatting 
technologies as part of the electronic storage system as long as the 
requirements of 8 CFR 274a.2 are satisfied.
    (8) At the time of an inspection, the person or entity required to 
retain completed Forms I-9 must:
    (i) Retrieve and reproduce (including printing copies on paper, if 
requested) only the Forms I-9 electronically retained in the electronic 
storage system and supporting documentation specifically requested by 
an agency of the United States, along with associated audit trails. 
Generally, an audit trail is a record showing who has accessed a 
computer system and the actions performed within or on the computer 
system during a given period of time, and
    (ii) Provide a requesting agency of the United States with the 
resources (e.g., appropriate hardware and software, personnel and 
documentation) necessary to locate, retrieve, read, and reproduce 
(including paper copies) any electronically stored Forms I-9, any 
supporting documents, and their associated audit trails, reports, and 
other data used to maintain the authenticity, integrity, and 
reliability of the records.
    (iii) Provide, if requested, any reasonably available or obtainable 
electronic summary file(s), such as a spreadsheet, containing all of 
the information fields on all of the electronically stored Forms I-9 
requested by a requesting agency of the United States.
    (f) Documentation.
    (1) A person or entity who chooses to complete and/or retain Forms 
I-9 electronically must maintain and make available to an agency of the 
United States upon request documentation of the business processes 
that:
    (i) Create the retained Forms I-9;
    (ii) Modify and maintain the retained Forms I-9; and
    (iii) Establish the authenticity and integrity of the Forms I-9, 
such as audit trails.
    (2) Insufficient or incomplete documentation is a violation of 
section 274A(a)(1)(B) of the Act.
    (3) Any officer listed in 8 CFR 287.4 may issue a subpoena to 
compel production of any documentation required by 8 CFR 274a.2. 
Nothing in this section is intended to limit the subpoena power of an 
agency of the United States under section 235(a) of the Act.
    (g) Security.
    (1) Any person or entity who elects to complete or retain Forms I-9 
electronically must implement an effective records security program 
that:
    (i) Ensures that only authorized personnel have access to 
electronic records;
    (ii) Provides for backup and recovery of records to protect against 
information loss, such as power interruptions;
    (iii) Ensures that employees are trained to minimize the risk of 
unauthorized or accidental alteration or erasure of electronic records; 
and
    (iv) Ensure that whenever the electronic record is created, 
accessed, viewed, updated, or corrected, a secure and permanent record 
is created that establishes the date of access, the identity of the 
individual who accessed the electronic record, and the particular 
action taken.
    (2) An action or inaction resulting in the unauthorized alteration, 
loss, or erasure of electronic records, if it is known, or reasonably 
should be known, to be likely to have that effect, is a violation of 
section 274A(b)(3) of the Act.
    (h) Electronic signatures for employee.
    (1) If a Form I-9 is completed electronically, the attestations in 
Form I-9 must be completed using a system for capturing an electronic 
signature that meets the standards set forth in this paragraph. The 
system used to capture the electronic signature must include a method 
to acknowledge that the attestation to be signed has been read by the 
signatory. The electronic signature must be attached to, or logically 
associated with, an electronically completed Form I-9. In addition, the 
system must:
    (i) Affix the electronic signature at the time of the transaction;
    (ii) Create and preserve a record verifying the identity of the 
person producing the signature; and
    (iii) Provide a printed confirmation of the transaction, at the 
time of the transaction, to the person providing the signature.
    (2) Any person or entity who is required to ensure proper 
completion of a Form I-9 and who chooses electronic signature for a 
required attestation, but who has failed to comply with the standards 
set forth in this paragraph, is deemed to have not properly completed 
the Form I-9, in violation of section 274A(a)(1)(B) of the Act and 8 
CFR 274a.2(b)(2).
    (i) Electronic signatures for employer, recruiter or referrer, or 
representative. If a Form I-9 is completed electronically, the 
employer, the recruiter or referrer for a fee, or the representative of 
the

[[Page 34517]]

employer or the recruiter or referrer, must attest to the required 
information in Form I-9. The system used to capture the electronic 
signature should include a method to acknowledge that the attestation 
to be signed has been read by the signatory. Any person or entity who 
has failed to comply with the criteria established by this regulation 
for electronic signatures, if used, and at the time of inspection does 
not present a properly completed Form I-9 for the employee, is in 
violation of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2).

    Dated: June 8, 2006.
Michael Chertoff,
Secretary.
 [FR Doc. E6-9283 Filed 6-14-06; 8:45 am]
BILLING CODE 4410-10-P