108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–731 

TO AMEND SECTION 274A OF THE IMMIGRATION AND NATIONALITY ACT TO IMPROVE THE PROCESS FOR VERIFYING AN INDIVIDUAL’S ELIGIBILITY FOR EMPLOYMENT 

OCTOBER 5, 2004.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 4306] 

[Including Committee Cost Estimate] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4306) to amend section 274A of the Immigration and Nationality Act to improve the process for verifying an individual’s eligibility for employment, having considered the same, reports favorably thereon with an amendment and recommends that the bill as 

amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Vote of the Committee ............................................................................................. 4 

Committee Oversight Findings ............................................................................... 4 

New Budget Authority and Tax Expenditures ...................................................... 5 

Committee Cost Estimate ....................................................................................... 5 

Performance Goals and Objectives ......................................................................... 5 

Constitutional Authority Statement ...................................................................... 5 

Section-by-Section Analysis and Discussion .......................................................... 5 

Agency Views ........................................................................................................... 6 

Changes in Existing Law Made by the Bill, as Reported ..................................... 7 

Markup Transcript .................................................................................................. 9 

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1See section 274A of the Immigration and Nationality Act. 

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. IMPROVEMENTS TO EMPLOYMENT VERIFICATION SYSTEM. 

(a) IN GENERAL.—Section 274A(b) of the Immigration and Nationality Act (8 

U.S.C. 1324a(b)) is amended— 

(1) in paragraph (1)(A), by inserting before ‘‘A person or entity has complied’’ the following: ‘‘Such attestation may be manifested by either a hand-written or an electronic signature.’’; 

(2) in paragraph (2), by adding at the end the following: ‘‘Such attestation 

may be manifested by either a hand-written or an electronic signature.’’; and 

(3) in paragraph (3), by inserting ‘‘a paper, microfiche, microfilm, or electronic version of’’ after ‘‘must retain’’. 

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 

on the earlier of— 

(1) the date on which final regulations implementing such amendments 

take effect; or 

(2) 90 days after the date of the enactment of this Act. 

PURPOSE AND SUMMARY

H.R. 4306 would amend the Immigration and Nationality Act to 

allow employers to comply with a statutory mandate to prepare 

and retain Employment Eligibility Verification Forms (Forms I-9) 

for their employees electronically. 

BACKGROUND AND NEED FOR THE LEGISLATION

All employers in the United States are required to complete and 

retain Employment Eligibility Verification Forms (Forms I-9) for 

each individual they hire for employment in the United States.1 On 

the form, the employer must identify the employment eligibility 

and identity documents presented by the employee and verify review of those documents. The employer is not required to file the 

form with the government, but instead must keep the form in 

paper form or on microfiche or microfilm, either for 3 years after 

the date of hire or for 1 year after employment is terminated, 

whichever is later. 

The form must be made available for inspection by Federal officials from U.S. Immigration and Customs Enforcement (‘‘ICE’’), the 

Justice Department’s Civil Rights Division, and the Department of 

Labor. Government officials who want to inspect those documents 

must provide the employer with three business days’ notice of such 

inspection. The documents must be made available for inspection 

either at the place where the request was made or elsewhere if the 

employer and government officials agree. 

H.R. 4306 would allow employers to electronically complete and 

store I-9 forms. This legislation is a reasonable extension of the 

current law. It would not only facilitate employer compliance, but 

also enhance enforcement of the law. 

In allowing for the electronic storage and retrieval of I-9 forms, 

the bill would facilitate both an employer’s presentation of documents and the government’s inspection of them. Electronic storage 

would allow an employer to easily maintain a single I-9 storage 

system for its various facilities throughout the country. This is particularly important to companies that operate multiple worksites in 

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different states. Such a system could be accessed from remote locations by computer and, therefore, could eliminate the practical 

problem of unearthing and relocating individual forms each time 

an employee is transferred from one facility to another. Electronically stored I-9 forms could also be retrieved more quickly than 

paper, microfiche, or microfilm copies, simply by entering the employee’s name or identification number into a storage system. 

Centralized electronic storage would also facilitate review of the 

documents and thereby facilitate enforcement of the immigration 

laws by Federal officials. Currently, in many cases the breadth of 

the inspection request by the government is unclear. Often, the difficulty of presenting the documents circumscribes the scope of the 

inspection. For example, if an inspection were scheduled for the I9 forms of an outlet of a chain store, generally only forms for that 

outlet would be provided. The presentation of documents from the 

company as a whole, within the 3 days required by law, would be 

impractical. 

Often, however, the actions of an outlet are indicative of the actions of the company as a whole. If the company were to maintain 

I-9 forms electronically, government officials could request documents for the company as a whole as easily as they could for any 

individual outlet. In addition, inspection of the forms themselves, 

which currently requires examination of writing that is often barely legible, would also be facilitated. Further, ICE, the Justice Department, or the Labor Department could request a company that 

retains I-9 forms electronically to provide the documents electronically for inspection purposes. Those Federal officials could then 

perform ‘‘virtual audits’’ of businesses by sending out the requisite 

notice, and receiving electronic copies of the forms and other requested documents without ever going to the place of employment. 

Maintaining sufficient storage space to accommodate hard copies 

of I-9 forms has become a significant document management challenge for many companies, especially in industries with high turnover rates for employees. This burden is magnified by the length 

of the retention requirements for I-9 forms. Storing forms electronically would greatly alleviate, if not eliminate, this burden. 

Concerns have been raised in the past that paper I-9 forms, 

which contain a significant amount of personal information on the 

employee (e.g., name, Social Security number, A-number), can pose 

a privacy risk if they are improperly used or are stolen. The largely 

paper-based nature of those documents is one of the main reasons 

for this concern because access to paper (or even microfiche and 

microfilm) records can be restricted only by physical security devices. Access to electronically stored records can be restricted effectively to authorized personnel through the use of passwords and access codes, in addition to physical security measures, such as locks. 

Electronic storage could greatly increase the organization of 

Forms I-9, making them both easier to provide and to review. Regardless of the degree of care exercised in storing paper documents, 

inevitably such documents can be lost, misplaced, misfiled, or physically damaged. This likelihood increases over time, as physical 

records are removed from and returned to files, or transferred from 

file to file. In addition to the typical day-to-day damage that paper 

documents often suffer over time, such documents are subject to 

complete loss in the event of theft or disaster. Companies have 

4 

2Pub. L. No. 105–277 (1998). 

3Pub. L. No. 106–229 (2000). 

raised such losses as a defense to non-compliance with the retention and presentation requirements in the past. While no company 

could be expected to ‘‘back up’’ all their original I-9 forms with photocopies, securely backing up electronic files has become a routine 

part of any company’s daily procedures. 

The electronic completion and storage of I-9 forms is consistent 

with the Government Paperwork Elimination Act (GPEA).2 GPEA 

gave Federal agencies until October 2003 to provide citizens the option of conducting business with the government electronically. The 

law also provides that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form. Moreover, 

the Electronic Signatures in Global and National Commerce Act 3

provides that electronic signatures on contracts and most other 

legal documents are as valid and enforceable as written signatures. 

Under this bill, electronic copies of I-9 forms are to be considered 

legally valid and enforceable. Likewise, the Federal Rules of Evidence provide for the admissibility of electronically stored data and 

information, specifying that printouts of such information constitute ‘‘originals’’ for evidentiary purposes. Under this bill, therefore, electronic copies of I-9 forms could be submitted in connection 

with a criminal or administrative proceeding relating to the documents. 

HEARINGS

No hearings were held in the Committee on the Judiciary on 

H.R. 4306. 

COMMITTEE CONSIDERATION

On September 14, 2004, the Subcommittee on Immigration, Border Security, and Claims met in open session and ordered favorably 

reported the bill H.R. 4306, with an amendment, by a voice vote, 

a quorum being present. On September 30, 2004, the Committee 

met in open session and ordered favorably reported the bill H.R. 

4306 with an amendment, by voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee’s consideration of H.R. 4306. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

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NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

COMMITTEE COST ESTIMATE

In compliance with clause 3(d)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee believes that the bill will 

have no significant cost for the current fiscal year, and no significant cost for the next five fiscal years. The Committee did not receive any estimates of the costs of this legislation from any other 

government agency as outlined in clause 3(d)(2)(B) of rule XIII. The 

bill does not authorize programs so the Committee cannot provide 

a comparison with relevant programs under current law as outlined in clause 3(d)(2)(C) of rule XIII. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, the bill would amend 

the Immigration and Nationality Act to allow employers to comply 

with a statutory mandate to prepare and retain Employment Eligibility Verification Forms (Forms I-9) for their employees electronically, making more efficient the retention of the documents and facilitating their review by the government. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, § 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Improvements to Employment Verification System. 

Subsection 1(a) amends the Immigration and Nationality Act to 

allow employers to complete Forms I-9 electronically. This section 

specifically allows employers and employees to complete the attestation required under paragraph 274A(b)(1) of the INA electronically. It also allows employers to retain Forms I-9 electronically, as 

well as in paper form or on microfilm and microfiche. 

Subsection 1(b) provides that the amendments in this bill will 

take effect on the earlier of the date on which final regulations implementing the regulations take effect, or 90 days after enactment, 

whichever is earlier. 

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AGENCY VIEWS


4306AG1.eps
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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 

and existing law in which no change is proposed is shown in 

roman): 

SECTION 274A OF THE IMMIGRATION AND 

NATIONALITY ACT 

UNLAWFUL EMPLOYMENT OF ALIENS

SEC. 274A. (a) * * * 


4306AG2.eps
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(b) EMPLOYMENT VERIFICATION SYSTEM.—The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the 

case of a person or other entity hiring, recruiting, or referring an 

individual for employment in the United States, the requirements 

specified in the following three paragraphs: 

(1) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION.— 

(A) IN GENERAL.—The person or entity must attest, 

under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it 

has verified that the individual is not an unauthorized 

alien by examining— 

(i) * * * 

* * * * * * * 

Such attestation may be manifested by either a hand-written or an electronic signature. A person or entity has complied with the requirement of this paragraph with respect 

to examination of a document if the document reasonably 

appears on its face to be genuine. If an individual provides 

a document or combination of documents that reasonably 

appears on its face to be genuine and that is sufficient to 

meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any 

other document or as requiring the individual to produce 

such another document. 

(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.—The individual must attest, under penalty of perjury on 

the form designated or established for purposes of paragraph 

(1), that the individual is a citizen or national of the United 

States, an alien lawfully admitted for permanent residence, or 

an alien who is authorized under this Act or by the Attorney 

General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a handwritten or an electronic signature. 

(3) RETENTION OF VERIFICATION FORM.—After completion of 

such form in accordance with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or 

electronic version of the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department 

of Labor during a period beginning on the date of the hiring, 

recruiting, or referral of the individual and ending— 

(A) * * * 

* * * * * * * 

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MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, SEPTEMBER 30, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will come to order. A 

working quorum is present. The first item on the agenda is H.R. 

4306, to amend section 274A of the Immigration and Nationality 

Act to improve the process for verifying an individual’s eligibility 

for employment. The Chair recognizes the gentleman from Indiana, 

Mr. Hostettler, the Chairman of the Subcommittee on Immigration, 

Border Security, and Claims, for a motion. 

Mr. HOSTETTLER. Mr. Chairman, the Subcommittee on Immigration, Border Security, and Claims reports favorably the bill H.R. 

4306 with the single amendment in the nature of a substitute and 

moves its favorable recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point. 

[The bill, H.R. 4306, follows:] 

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Chairman SENSENBRENNER. And the Subcommittee amendment 

in the nature of a substitute which the Members have before them 

will be considered as read, considered as the original text for purposes of amendment and open for amendment at any point. 

[The amendment follows:] 


4306A1.eps
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4306A2.eps
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Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from Indiana, Mr. Hostettler, to strike the last word briefly. 

Mr. HOSTETTLER. Thank you, Mr. Chairman. I urge my colleagues to support H.R. 4306, introduced by our colleague Mr. Cannon, which would allow for the electronic preparation and storage 

of employment eligibility verification forms known as forms I-9. 

In the Immigration Reform and Control Act of 1986 Congress 

prohibited American employers from hiring aliens who lack employment authorization. To assist employers in complying with this 

requirement, the IRCA mandated that employers review documents 

establishing their employees employment authorization and ensure 

that the employees attested to the fact that they were eligible to 

be employed. Both the employee’s attestation and the employer’s 

review of the documents were to be memorialized on the form I-9, 

a document that was introduced by INS in 1987. Forms I-9 are not 

filed with the Federal Government. Rather, to ensure that the employer complied with the I-9 requirements and to allow the government the opportunity to ensure that the employer complied with 

the immigration and labor laws, IRCA required the employer to retain the form for 3 years after hire or 1 year after the employee’s 

termination, whichever was later. 

The 1987 regulations implementing this provision allow the employer to keep those forms in one of three ways, on the original 

paper form, on microfilm or microfiche. While there have been 

many advances in document preparation and retention technology 

in the past 17 years, those changes have not been reflected in the 

employment eligibility verification regulations. As a consequence, 

there is still only one method for preparing form I-9 and that is on 

the original form. There are still only three ways to retain those 

forms, on the original paper, on microfilm and on microfiche. 

H.R. 4306 would bring the employment verification process into 

the 21st century by allowing employers to complete and retain 

forms I-9 electronically. This proposal would benefit the employer 

in maintaining records as well as the government in enforcing the 

immigration and labor laws. Electronic preparation and retention 

will allow employers to improve efficiency in the hiring process and 

save resources that they currently spend on preparing and storing 

paper forms I-9. Further, electronic access to forms I-9 will make 

it easier for government agents to review those forms and in particular make it easier for the Department of Homeland Security to 

enforce the employer sanctions provisions of the Immigration and 

Nationality Act. 

For these reasons I urge my colleagues to support H.R. 4306 and 

yield back the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from Virginia 

wish to give an opening statement? 

Mr. SCOTT. Mr. Chairman, I would ask unanimous consent that 

a statement from the gentlelady from Texas, Ms. Jackson Lee in 

support of the bill be entered into the record. 

Chairman SENSENBRENNER. Without objection, so ordered. And 

without objection all Members may include opening statements in 

the record at this point. 

[The prepared statement of Ms. Jackson Lee follows:] 

15 

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE

ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

The regulation 8 CFR § 274a2(b)(2) requires United States employers to process 

and retain I-9 forms for up to 3 years. These forms are used to verify the employment eligibility and identity of all employees in the United States. They are required to be kept on paper or on microfilm or microfiche. This was fine in 1988, 

when the regulation was promulgated. Computers were expensive and less widely 

used in 1988. Paper records were an unavoidable burden then, and microfilm and 

microfiche were being used far more in 1988 than they are now. It is not appropriate to be restricted to such records in the computer age that we live in today. 

More than half of the benefits applications that are submitted to the U.S. Citizenship and Immigration Service are filed on its website, but employers are still required to maintain paper I-9 forms. Employers should be permitted to keep the 

Form I-9 in electronic form. In addition to saving paper and storage space, an electronic storage system would permit a central reservoir of data and allow retrieval 

of I-9 forms in a fraction of the time it takes to retrieve paper, microfiche, or microfilm copies. 

H.R. 4306 simply would allow employers the option of electronic processing and 

storage of the I-9 forms. This would include electronic signatures. I will vote for 

H.R. 4306. 

Thank you. 

Chairman SENSENBRENNER. Are there amendments? If there are 

no amendments, a reporting quorum is not present, and without 

objection the previous question is ordered on reporting the bill favorably. 

[Intervening business.] 

Chairman SENSENBRENNER. The unfinished business is the motion to report favorably the bill, H.R. 4306, to amend section 274A 

of the Immigration and Nationality Act, to improve the process for 

verifying an individual’s eligibility for employment, on which the 

previous question is ordered. 

The question occurs on the motion to report—or excuse me. A reporting quorum is present. The question occurs on the motion to report the bill, H.R. 4306, favorably. All those in favor will say aye. 

Opposed, no. The ayes appear to have it. The ayes have it. The motion to report favorably is agreed to. 

Without objection, the Chairman is authorized to move to go to 

conference pursuant to House rules. Without objection, the staff is 

directed to make any technical and conforming changes, and all 

Members will be given 2 days as provided by the House rules in 

which to submit additional, dissenting, supplemental, or minority 

views. 

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