Should Employers Consider an Electronic I-9 Program?

Electronic I-9s: Compliance is key

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:

  • require a Social Security number (SSN) in Section 1, even if the employer does not use E-Verify (this field is supposed to be optional for employees that do not use E-Verify)
  • require that an employee who indicates that he or she is an “alien authorized to work” input an expiration date (which should not be required from certain foreign nationals, such as asylees and refugees)
  • prohibit employees and employers from completing an I-9 if the deadline for completion has passed (in fact, it is typically better to complete an I-9 late than to not complete one at all), and
  • limit the lists of acceptable identity and work authorization documents in a way that may give rise to charges of discrimination or so-called “document abuse” by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

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:

  • Electronic signatures must “include a method to acknowledge that the attestation to be signed has been read by the signatory” and must “create and preserve a record verifying the identity of the person producing the signature.” This is one of the most important items to consider, as a noncompliant signature may be treated as no signature at all, effectively voiding the I-9.
  • Detailed audit trails must be included so that whenever the electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.”
  • The employee must be provided with the form’s instructions.
  • The form content and data elements must remain unchanged and in the same order as on the paper form.
  • The employer must be able to print legible hard copies of the forms.

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.

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