Employers Beware... Of Your Electronic I-9 Form!

Hello and thank you for subscribing and welcome to the inaugural issue of Proactive Employer Insights!

As you know, with President Trump's return to office, we have essentially been promised a crackdown on illegal immigration. If you are a business owner, executive, hiring manager, or Human Resources practitioner, you are likely wondering exactly what such a crackdown will look like for your company.

How will the Trump Administration carry out such a crackdown (which in fact seems to have already started)? Audits of companies' Forms I-9 and raids.

For those who may be new to this wonderful wide world, let's cover a few basics first:

When you hire new employees, the Immigration Reform Control Act of 1986 (IRCA) and the Immigration and Naturalization Act (INA) require you to verify: a) their identities; and b) their eligibility to work in the United States. You cannot employ (or continue to employ) anyone whose identity and eligibility you cannot verify.

OK, but how do you verify employees' identity and eligibility to work in the US? You do so by completing a Form I-9 for each such employee. Part of the process includes the employee providing you supporting documents that prove identity and eligibility to work in the United States.

Rather than focus on the actual I-9 audits and ICE raids though this issue zeroes in on the often-overlooked role played by electronic I-9s.

Now, you may be wondering, what's wrong with electronic I-9s? The answer depends on the specific product. Quite a few vendors offer them. While many are fine, some could actually put your company at risk of filing noncompliant I-9s -- which the Department of Homeland Security equates with you not having completed an I-9 at all. You see the potential problem now, right?

"But wait", you might say, "I know our I-9 is compliant. we spoke with our vendor before we committed to anything, and they assured us the form is compliant". Here's the problem with that: If you spoke with a salesperson or someone similar, they likely do not actually know if the their product is compliant. Besides, guess where the responsibility for compliance lies? Hint: not with the vendor.

Assuming I've got your attention now (and I suspect I do) what exactly makes some of the platforms noncompliant? The most common areas of concern are: a) pre-population of the form, and b) electronic signatures. I will address pre-population in this issue and electronic signatures in the next one.

What is pre-population and why is it a problem? Pre-population is the process one can use to pre-fill a form with information about respondents, such as their names, addresses, dates of birth, social security number or even citizenship attestation. OK, sounds good, right? What's wrong with that? Immigrations and Customs Enforcement (ICE) and the Department of Justice, in a joint guidance specifically prohibit pre-population. Why?

Here are just some concerns:

a) Risk of discrimination allegations - pre-population makes it look like the employer is assuming information about an employee's citizenship/employment authorization without direct input from the employee. That information could be inaccurate, and result in legal issues for an employer.

b) Section 1 is the employee's responsibility: This part of the I-9 is specifically designed for employees to self-certify their immigration and/or employment eligibility status without employer interference.

c) Potential for inaccuracy: Information pulled from other sources to pre-fill Section 1 of the I-9 may come from sources that are either outdated or simply inaccurate, which means the I-9 will contain errors. That in turn could result in either being unable to verify employment eligibility or an erroneous determination, either of which could come back to bite the employer (and the employee).

d) Legal issues: If the I-9 contains information that is outdated, inaccurate or provided without employee input, the employer could, for starters, be assessed fines or penalties for each violation, which quickly add up. In a worst case scenario, if ICE flags enough pre-filled I-9s it could conduct a raid. If it then determines that a company has knowingly employed ineligible individuals it could even shut the company down.

So, then, If you use an electronic program that pre-populates what should -- or can -- you do? Here are some ideas:

1. Use an electronic system that allows for the employee to fill out Section 1 themselves (which the law requires in any case). The system can also provide access for previously collected information, solely for convenience.
2. Provide clear instructions to employees that they must complete Section 1 accurately and independently of the employer.
3. Consider providing translation assistance. An employee can bring or the employer can provide someone to help with translation and preparation of Section 1. In such cases, the Preparer(s)/Translator(s) fill out Supplement A, the Preparer/Translator Certification in which each Preparer/Translator certifies that they assisted in the completion of Section 1, that the information, to the best of their knowledge is accurate. They provide their last name, first name, middle initial, address and phone number. Supplement A allows for up to four Preparers/Translators (although, frankly, I personally haven't seen and can't easily envision a situation where that many are necessary).

In the interest of keeping discussion of a less-than-fun subject manageable, let's (as I indicated above) continue with electronic signatures and concluding comments in the next issue.

I hope you found this first issue helpful. Feel free to comment with your thoughts. You can also email me at [email protected] or message me on LinkedIn with questions and even suggestions of topics you would like to see addressed in upcoming issues.

See you in two weeks!

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