LEGAL OVERVIEW
The history of the Immigration Nationality Act (INA) rules required physical examination of identification documents in the processing of Form I-9. According to the United States Customs Immigration Services (USCIS) Employer Handbook M-274 Form I-9 may now be electronically processed. As a result the original (INA) requirement of physical examination of an employee identification document is now afforded adjunct legislative support for legality of electronic signatures and records. In years1999 and 2000 both U.S. Federal and State law provide legal support for electronic signatures and electronic records. Below is a brief overview of how these new laws and rules make our technology solution IRON CLAD!
FEDERAL LAW
Electronic Signatures and Global and National Commerce Act
TITLE I—ELECTRONIC RECORDS AND
SIGNATURES IN COMMERCE
SEC. 101. GENERAL RULE OF VALIDITY.
(a) IN GENERAL.—Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce
(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
(g) NOTARIZATION AND ACKNOWLEDGMENT
If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation,or rule of law, is attached to or logically associated with the signature or record.
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State Law
Uniform Electronic Transaction Act
1633.9. (a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
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Federal Bridge Certification Authority (FBCA)
Antecedent in-person identity proofing event
Applicant to provide a Federal Government-issued Picture I.D., or two Non-Federal Government I.D.’s. One of which shall be a photo I.D. (e.g., Drivers License).
Trusted Agent or an entity certified by a State or Federal Entity as being authorized to confirm identities is required to obtain applicant’s signature. The entity confirming the identity’s signature or auditable confirmation of identity proofing process is to be recorded.
ID Proofing Relationship
The entity performing the identity proofing, Identity Verification Provider or Sponsor of the applicant shall have a contractual relationship with the Entity PKI
Sponsor or Identity Verification Provider shall have an established relationship with applicant. The relationship must be sufficient enough to enable the authenticating entity to, with a high degree of certainty, verify that the person seeking PKI certificate is the same person that was identity proofed.
Sponsor’s application shall contain a description of the relationship with applicant describing the initial identity proofing or qualifications and the ongoing relationship.
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DHS / USCIS / INA CFR Regulations
DHS/USCIS Employer Handbook M-274Part III Photocopying and Retaining:Electronic Signature of Forms I-9
If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically completed Form I-9. In addition, the system must:
1. Affix the electronic signature at the time of the transaction;
2. Create and preserve a record verifying the identity of the person producing the signature; and
1. Affix the electronic signature at the time of the transaction;2. Create and preserve a record verifying the identity of the person producing the signature; and
3. Provide a printed confirmation of the transaction, at the time of the transaction, to the person providing the signature.
NOTE: If you choose to use electronic signature to complete Form I-9, but do not comply with these standards, DHS will determine that you have not properly completed Form I-9, in violation of section 274A(a)(1)(B) of the INA. (8 CFR Part 274a.2(f)(2))
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TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)\8 CFR 274a
(1) Examination of documents and completion of Form I-9.
(B) Present to the employer or the recruiter or referrer for a fee documentation as set forth in paragraph (b)(1)(v) of this section establishing his or her identity and employment authorization within the time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this section.
§ 274a.2 Verification of identity and employment authorization.
Recruiters and referrers may designate agents to complete the employment verification procedures on their behalf including but not limited to notaries public, national associations, or employers.
(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
I–9, such as audit trails.