Is Your Electronic I-9 Software Compliant? Here's What You Need to Know

The Department of Justice and Immigration and Customs Enforcement recently collaborated to release a joint fact sheet aimed at guiding employers on how to steer clear of unlawful discrimination when utilizing electronic Form I-9 and E-Verify software. This comprehensive document underscores that the mere use of a Form I-9 software program does not automatically guarantee compliance with federal law. Instead, it emphasizes that employers hold the primary responsibility of ensuring that any software utilized for Form I-9 or E-Verify processes fully aligns with legal requirements.

Electronic I-9 Software Does Not Equal Compliance

Employers are strongly urged to conduct thorough assessments of the electronic I-9 solutions they employ and the manner in which they are utilized within their organizations. While certain electronic I-9 systems may offer features that assist in mitigating compliance risks more effectively, employers must understand that they remain ultimately accountable for adhering to the intricate regulations governing Form I-9 and E-Verify procedures. This includes steering clear of unfair document practices and discriminatory actions as outlined under the Immigration and Nationality Act (INA), especially during critical phases such as work authorization and identification verification. We've outlined considerations relating to these types of discriminatory practices in our recent ebook: Preventing Discrimination During the I-9 Process.

Furthermore, it is imperative for employers to diligently follow all applicable retention mandates for Forms I-9 and any accompanying documents to avoid potential legal pitfalls. U.S. Citizenship and Immigration Services (USCIS) also outlines guidance for electronic storage of Form I-9, including:

• Integrity Controls: The system must incorporate measures to ensure the integrity, accuracy, and reliability of the electronic generation and storage process.

• Security Measures: It should implement controls to identify and prevent any unauthorized or accidental actions such as creation, addition, alteration, deletion, or deterioration of an electronically completed Form I-9, including the electronic signature if applicable.

• Audit Trail: The system must maintain an audit trail documenting any changes or alterations made to the form after its initial creation. This trail should be easily accessible to government agencies conducting inspections.

• Quality Assurance Program: Employers need to establish an inspection and quality assurance program to regularly assess the electronic generation or storage system. This program should include periodic checks of electronically stored Form I-9, including any electronic signatures utilized.

• Comprehensive Indexing: The system must maintain a detailed index of all stored data, facilitating immediate access to any specific record as required.

• Legibility Standards: Forms displayed on a video display terminal or reproduced on paper must maintain a high degree of legibility and readability, ensuring clarity and comprehension.

Fact Sheet Highlights

The fact sheet delineates several key points for employers to consider:

Utilizing Form I-9 Software Programs:

• Ensuring compliance with Form I-9 legal requirements, E-Verify stipulations, and prohibitions against unfair employment practices is of paramount importance.
• Employers must ensure that their chosen electronic Form I-9 solution facilitates seamless completion of the form while adhering to specified protocols such as access to required versions, sequential completion by employees and employers, and appropriate handling of optional fields.

Utilizing Form I-9 Software for E-Verify Cases:

• Employers must not only enable employees to address mismatches effectively but also refrain from taking adverse actions during resolution processes.
• Adherence to E-Verify requirements, provision of requisite notices, and support for employees with limited English proficiency are essential elements.

Training and Support for Form I-9 Software Users:

• Employers must provide comprehensive training and support for personnel responsible for administering Form I-9 software programs to ensure proper utilization and compliance with regulatory standards.

Guidelines for Employers Using Form I-9 Software:

• Prohibited actions include automatic pre-population of forms, completing forms on behalf of employees without proper authorization, altering form fields, and requesting unnecessary documentation.
• Employers must maintain thorough documentation of any modifications made to Form I-9 records and avoid misleading prompts that may lead to incorrect or excessive document submissions.

Additional Resources:

• The fact sheet provides contact information for relevant government agencies and links to educational materials to assist employers in navigating the complexities of electronic Form I-9 compliance. View or download the fact sheet.

Choosing Electronic I-9 Software

Employers using deficient I-9 software or relying solely on paper forms may find themselves exposed to heightened risks of substantial fines and penalties. Even seemingly minor errors can lead to significant consequences for your organization. Therefore, ensuring that your I-9 solution aligns with the latest Form I-9 compliance regulations is of utmost importance.

As more organizations embrace electronic I-9 or I-9 software solutions, it becomes increasingly critical to scrutinize these systems for both compliance and efficiency. Not all I-9 systems are created equal, and some may not meet the specific requirements of your organization. To aid in this evaluation process download our interactive ultimate guide to assess electronic I-9 compliance software and vendors.