Electronic I-9s can dramatically improve an employer’s compliance with the relevant I-9 laws, rules, regulations, and ever-changing government guidance, but they are not for everyone. When determining whether to “go electronic,” you should first consider whether they are a practical solution for your business. These systems can be expensive, and they require that you have computers at most hiring sites. If you can get past those practical hurdles, you should consider the following:
A good system must prevent errors without creating them.
Electronic I-9s can make it very difficult for your new hires – and for you – to make mistakes that could lead to fines in the event of an inspection by U.S. Immigration and Customs Enforcement (ICE). This is generally a good thing, but when a system goes too far, it can actually place you at risk. For instance, a number of electronic I-9 systems have been known to:
The system must comply with the regulations.
Specific U.S. government regulations govern electronic creation, signature, and storage of I-9s. These regulations (found at 8 CFR 274a.2) are complex and still relatively new; there has been little government guidance surrounding their interpretation. As such, employers must generally be cautious and conservative in deciphering the regulations and in determining whether a specific software program is compliant. Some highlights include the following:
System security must be strong.
A compliant electronic I-9 program must include “reasonable controls” to ensure the system’s “integrity, accuracy and reliability” and to “prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature.” The system must also be regularly evaluated to ensure compliance and security.
As a part of the security program, employers must make certain that only authorized company representatives have access to the electronic I-9 files and must ensure that those employees receive training so that records are not accessed by unauthorized personnel or accidentally altered or erased. As with other electronic data storage, the electronic I-9 system must provide “for backup and recovery of records to protect against information loss, such as power interruptions.”
Expert review and guidance is imperative.
To avoid the nightmares that so many employers have faced after selecting noncompliant electronic I-9 systems, you must ensure that any system you consider is reviewed and approved by a qualified expert to ensure that the system you are purchasing will help you rather than hurt you. Good electronic I-9 systems can prevent errors and minimize risk, but bad ones can create risk. Choose wisely.