The federal government will allow the use of electronic storage and signatures on a key immigration form. It also has proposed guidelines that would clarify the responsibility of employers when a discrepancy arises over an immigrant worker’s Social Security records.
The Department of Homeland Security (DHS) proposed a rule that addresses the process for reconciling information about immigrant workers that is submitted to the Social Security Administration (SSA) for verification. It can be fairly common for employers to receive notification that Social Security information provided on a particular employee is in error. It may be the result of a simple clerical error or name change, or an employee could have provided wrong or false information.
It is unlawful for a person or business to continue to employ an alien after learning the worker is an unauthorized alien and not eligible for employment.
Many people were wondering if a letter from SSA noting a discrepancy in records was tantamount to knowing the worker is an illegal alien. DHS has clarified the legal obligations of employers that receive a so-called ‘no-match’ letter from SSA or the Department of Human Services. Basically, employers that do not take any action after receiving such a notice may be considered to know that the worker was an illegal alien.
An employer’s legal liability in such a case would depend on all relevant circumstances. This gives DHS wiggle room to interpret each situation as it sees fit.
If a business follows the procedures outlined in the new rules, however, DHS would have a difficult time making a case in court that the employer or its management violated the law.
The proposed rule suggests that reasonable employers would take the following steps after receiving a no-match letter.
1.) Check its records within 14 days of receipt of a no-match letter to determine whether the discrepancy results from a typographical, transcribing, or clerical error.
2.) If the discrepancy still exists, the employer should promptly request the employee to confirm that the employer’s records are correct. If they are not correct, the employer would take the actions needed to correct them and inform the relevant agencies, and re-verify the corrected records.
3.) If the records are correct according to the employee, the employer should ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office. Immigration & Customs Enforcement (ICE) would consider a reasonable employer to have acted promptly if the employer took such steps within 14 days of receipt of the no-match letter. The employee is given a reasonable period of time to correct any problem.
4.) If the discrepancy referred to in the no-match letter is not resolved at this point, and if the employee’s identity and work authorization cannot be verified using a reasonable verification procedure, then the employer must choose between taking action to terminate the employee or face the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien.
The proposed regulation considers a discrepancy to be resolved only if the employer verifies with SSA or DHS that the no-match has been corrected. ICE has established specific procedures for employers if a discrepancy is not resolved within 60 days of receipt of the no-match letter. View the complete rule online to see what you should do if any problem cannot be remedied within 60 days.
Employers should apply these procedures uniformly to all of their employees having unresolved no-match indicators. If they do not, they may violate applicable anti-discrimination laws.
The proposed guidelines also allow employers to electronically scan and store existing Forms I-9 as long as certain standards are met. DHS is using the most widely applicable electronic storage standards, those adopted by the Internal Revenue Service (IRS) for tax records.
Under the old procedures, employers were required to keep paper, microfilm or microfiche copies of the forms. The new policy allows for electronic signatures and electronic storage in common formats, such as the Portable Document Format (PDF).
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. As long as the electronic records system remains IRS-compliant, the system will be compliant with Immigration & Customs Enforcement policies.
Businesses may save costs by storing Forms I-9 electronically, and they 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.
There are a number of nuances about the new rules. For more information, visit www.dhs.gov/dhspublic/interapp/editorial/editorial_0499.xml.
Guidelines for Electronic Form I-9 Signature & Storage
A. Employers utilizing electronic retention and signature technology for Form I-9 may find it helpful to review system requirements placed upon Federal agencies.
B. Electronically generated or retained forms must be legible.
C. Companies that choose electronic storage methods must take reasonable measures to safeguard the information from unauthorized access and protect the data from all hardware or software problems that could make it hard to retrieve the information.
D. Electronically stored I-9 forms must be backed up and protected from any kind of computer or software malfunction.
E. Any system used to capture the electronic signature should include a method to acknowledge that the form/information to be signed has been read by the signatory.
F. Establish procedures for electronic I-9 compliance and train employees on those procedures.
G. Periodic quality assurance checks can ensure that all electronic processes are working properly.
H. The electronic generation and storage system must have an indexing system that allows for the efficient retrieval of all forms and I-9 data. The requirement to maintain an indexing system is satisfied if the indexing system is functionally comparable to a reasonable hardcopy filing system.
I. The system must provide an audit trail that records the identity, the date and action taken whenever an electronic record is created, accessed, viewed, updated, or corrected.
