I-9 Rules on Pre-Population That Make You Go Hmm…

On a hot Tuesday afternoon last week, we gathered with other industry professionals from the American Payroll Association Immigration Subcommittee for our monthly teleconference on I-9 and E-Verify issues.  The meeting was also attended by several senior members from ICE headquarters and USCIS. What would have been a routine meeting became a lot more interesting when the topic turned to electronic I-9s and pre-population.

Although LawLogix has covered this issue at length in the past (dating all the way back to November 2010), you might be rather surprised to hear what the government is saying now. But first, let’s review…

NOVEMBER 2010 – AILA CONFERENCE IN MONTERREY, CA

One of the earliest mentions of electronic I-9 section 1 pre-population occurred at the American Immigration Lawyers Association (AILA) conference in Monterrey, California. It was a beautiful Saturday afternoon, and while many attendees had thoughts of sun and fun on the northern coast, a senior ICE representative casually mentioned the concerns she had with electronic I-9 section 1 pre-population. Specifically, she was concerned that pre-population was really akin to “assistance,” and thus the preparer/translator section should be completed. To be honest, the comments went mostly unnoticed, as the members were much more interested in the increasing number of NOIs that were blanketing the country.

JUNE 2011 – AILA ANNUAL CONFERENCE IN SAN DIEGO

In June of 2011, ICE Worksite Enforcement Supervisor once again explained how employers should approach pre-population of Section 1 on the Form I-9.   As before, ICE reiterated that it’s okay to pre-populate so long as the Preparer/Translator Certification section was concurrently completed by the appropriate party.  The same rules applied whether or not an electronic software system was utilized.  (Read a more detailed article on this topic here.)

APRIL 2012 – SECOND ANNUAL WORKSITE IMMIGRATION COMPLIANCE SYMPOSIUM

The Second Annual Worksite Immigration Compliance Symposium, sponsored by and held at Stanford University’s School of Law hosted many DHS speakers that year, including several senior members from the ICE worksite enforcement unit.  Once again, ICE confirmed how pre-population in Section 1 of the Form I-9 should be treated by employers.

MARCH 11, 2013 – USCIS HOLDS PUBLIC TELECONFERENCE ABOUT NEW FORM I-9

USCIS representatives presented for about 20 minutes on the changes to the new Form I-9.  I recall that Monday morning teleconference vividly.  The representatives then spent the next hour answering questions from callers.  Two separate callers that morning asked about using software that pre-populated Section 1 data.  The USCIS representative, in answering as to whether or not it was permissible, responded by instructing the audience it was not permissible to pre-populate Section 1, even if the Preparer/Translator Certification section was completed.

Naturally, this new instruction inherently contradicted previous instructions by USCIS and ICE.  Indeed, this change in course was chronicled in two separate articles by different immigration experts, here and here, on our blog.  (And I received a barrage of emails from colleagues about this very issue!)

AUGUST 20, 2013 – ICE INSTRUCT SECTION 1 PRE-POPULATION OKAY (AGAIN, SORT OF)

Fast-forward to last week. In our industry meeting with USCIS and ICE, the issue of Section 1 pre-population was discussed.  In response, ICE stated it had no specific position on the issue and advised employers to simply follow the “regulations.”  The wrinkle, though, is that the regulations currently do not address the specific issue of pre-population in Section 1.  To the extent that any information have been “leaked” to the public about ICE’s views on pre-population, ICE will officially release any policy changes if (and when) they go into effect.

AUGUST 20, 2013 – OSC ISSUES TECHNICAL ASSISTANT LETTER FROWNING ON PRE-POPULATION

In another twist, the Justice Department’s Civil Rights Division Office of Special Counsel (OSC), which typically investigates claims of immigration-related discrimination by employers of workers, chimed in on the topic of pre-population Section 1 of the Form I-9.

In issuing its Technical Assistance Letter,the OSC frowned upon the practice of pre-populating data in Section because “this practice increases the likelihood of including inaccurate or outdated information in Section 1.”  In addition to issues of outdated information, an employer may also be at risk of assuming workers have proficiency in English, thereby failing to provide workers with translators when needed.

THE TAKEAWAY

With such a variance in how to treat Section 1 pre-population, it’s no wonder employers are confused!  And while the issue itself may seem rather trivial (even comical when compared with bigger worksite enforcement issues), the fact remains that employers are ultimately liable for their I-9 compliance program. And thus every little policy change really does matter – not only in relation to the mitigation of fines, but also in how an employer goes about its daily onboarding of new hires.

So how does an employer reconcile these constantly changing views on electronic I-9 Section 1 pre-population? First, speak with experienced immigration counsel. It’s no secret that I-9 and E-Verify issues can be confusing (and complicated at best), so you’ll always want to talk with counsel to ensure that a change in one area of your I-9 process will not inadvertently cause trouble down the road.

Second, make sure to conduct your due diligence when selecting that electronic I-9 vendor in the first place. Does their system accommodate different pre-population configurations? What kind of error checking exists? And most importantly, how are they keeping up with the constant changes in this area?

Bottom line: the only way to tackle the changing landscape is by staying vigilant.

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