Just last month, the Worksite Investigation Enforcement Unit of the Immigration & Customs Enforcement (“ICE”) division of the Department of Homeland Security announced a change in policy regarding the use of electronic software for I-9 completion, storage, and compliance.
ICE stated publicly that it will no longer accept I-9 forms that have Section 1 content that has been pre-populated electronically because employees must complete Section 1 of the form entirely for themselves. The fact that an employee provided in writing the original information on which his or her Section 1 electronic content is based does not matter. ICE considers any pre-population of employee data on the I-9 form to be unacceptable, even if the data was provided by a translator who completed the translator section of the form.
This is a very important development for employers who use electronic I-9 systems for completion, storage and retrieval of I-9 information. These systems are beneficial in part because they are integrated with other HR systems, creating efficiencies in employment data tracking and compliance, but now part of their value will be lost as employers are forced to spend valuable time insuring that employees fill out the paperwork manually in front of a company witness.
Furthermore, ICE confirmed that it would remain steadfast on this interpretation in a meeting with a committee of the American Immigration Lawyers Association on April 11, 2013, adding that the prohibition on pre-population pertains to existing I-9 forms, as well as to the completion of future forms. This means that employers could face significant exposure to fines and penalties for failing to complete I-9 forms properly at a time when nobody questioned the pre-population of accurate data provided in good faith.
Employers might want to consult with counsel regarding any steps that can be taken to cure defects in I-9 compliance or prevent penalties for non-compliance in the future.
