USCIS issues new warning on pre-populating section 1 of Electronic I-9s

Today, the United States Citizenship and Immigration Services (USCIS) published guidance on a frequently problematic area of I-9 compliance – the automation or “pre-population” of employee data into section 1 of an electronic I-9. In a nutshell, the USCIS is now stating (quite clearly and unequivocally) that employers should not be pre-filling or auto-populating onboarding information into section 1 of an electronically prepared Form I-9. They also provided a list of fields in section 2 which may be populated from another system (more on that below).

s1-pre-popWhile the issue of pre-population may sound like a minor “technical” detail, the stakes are actually very high for employers. Under the regulations, Immigration and Customs Enforcement (“ICE”) has the right to examine and evaluate I-9s that have been completed electronically in order to ensure the system maintains the required levels of integrity and accountability. And in the event electronically stored I-9s fail to meet this standard, ICE can essentially deem the I-9 to be “invalid” – as if it never existed at all!

The dangers of electronic I-9 pre-population are especially pronounced for those employers using so-called “all-in-one” HR systems that combine onboarding, applicant tracking, payroll, and other related functions into one commingled process. Many of these providers have designed “I-9 modules” or add-ons where section 1 pre-population runs wild – an unacceptable risk for any organization that hopes to survive an I-9 audit.

Are you aware of the current rules (and guidance) relating to electronic I-9 pre-population? Read on for a comprehensive deep dive into this evolving compliance issue.

What in the world is electronic I-9 pre-population?

Imagine you’re just starting out in HR, and you’re in the process of hiring your very first employee. There are of course a myriad of forms and intakes that must be completed along the way, and like most organizations, you utilize software to automate these necessary tasks. You gather all kinds of information about your new hire employee – names, address, contact information, date of birth, and even the social security number (to name just a few).

And as part of the onboarding process, you also ask the employee to complete section 1 of the Form I-9 electronically (as allowed under the regulations). Now imagine your employee sits down in front of the computer, and lo and behold, some of the answers are already filled-in based on that biographic data that you previously collected. In fact, all your employee needs to do is review and fill-in the remaining blanks. This is what we call a pre-populated, pre-filled, or auto-populated section 1 of an electronic I-9.

And to a certain degree, it seems quite reasonable. You’ve already collected this information from your new hire employee – in fact, the new hire may have actually used the very same software system to provide these basic biographic details. What’s the harm in helping the employee out, as long as he or she ultimately has to read the form and sign-off on it?

The various agencies have struggled with this question over the years – particularly as more employers began to use electronic I-9 systems in the early part of this decade. Indeed, the guidance relating to I-9s (as documented in both the M-274 handbook and the Form instructions themselves) never contemplated the interconnected onboarding routine that was made possible with the advent of the electronic I-9. As a result, the agencies’ position on section 1 pre-population has been “evolving” based on what they are seeing in the field. But the trending seems pretty clear – over-automation with electronic I-9 software is being scrutinized to a new degree. Moreover, the agencies themselves do not always see eye to eye on this point, resulting in some confusing (and sometimes inconsistent) guidance.

Let’s take a look a closer look!

Policy Guidance from ICE relating to Section 1 Pre-Population

ICE was the first agency to provide us with guidance relating to section 1 pre-population, and their position has evolved the most. Initially in 2010-11, the agency noted that section 1 pre-population in an electronic I-9 was permissible as long as the employer also completed the preparer and/or translator section. To a certain extent, this made sense since the employee was being assisted/helped by the system which had so conveniently filled-in various fields.

However, it also raised some interesting questions, such as what name to provide in the preparer and/or translator fields and who should sign the section. Some people pondered that since the software is technically the preparer in this scenario, the software should somehow fill/sign the section, like an HR-aware HAL 9000 (“You want me to sign this section? I’m sorry Dave, I’m afraid I can’t do that.”) But more practically speaking, many employers were completely unaware of this policy, and very few systems enforced it.

In early 2013, the agency adopted a much stricter policy on section 1 pre-population, noting on a liaison call that it’s never permissible regardless of whether or not the preparer and/or translator section was used and regardless of whether or not the employee inputted the information that is pre-populated into the system. Later that year in October, ICE softened their stance, noting that they did not have an official position on the subject, and would instead evaluate electronic I-9s on a case by case basis. As far as we know, this is still the current guidance in effect with respect to ICE I-9 investigations.

Office of Special Counsel opines on Section 1 Pre-Population

While ICE was debating its view of section 1 pre-population in 2013, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) had an opportunity to weigh in as well – specifically in response to a letter received by an inquiring employer. As we’ve discussed in the past, the OSC is responsible for enforcing the anti-discrimination provisions of the law, and so their area of attention (and concern) focused on whether pre-population of section 1 could somehow disadvantage a new hire employee.

Specifically, in a Technical Assistance Letter dated August 20, 2013, the OSC strongly discouraged section 1 pre-population because “this practice increases the likelihood of including inaccurate or outdated information in Section 1.” In addition, the agency noted that pre-populating section 1 may be problematic if it turns out the new hire was not entirely proficient in English (a situation that should be remedied by the use of the preparer/translator section).

USCIS Provides Answers and Guidance on Section 1 Pre-Population

Last but not least, the USCIS has also provided some evolving guidance relating to electronic section 1 pre-population, through a variety of channels. The agency first addressed the issue in August 2012 in response to several comments regarding the proposed new form I-9 (which was later released in March 2013). Specifically, USCIS noted that they are “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resource system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.” This statement, which was inline with ICE’s earlier position, would soon change.

At a USCIS teleconference on March 11, 2013 (to discuss the new Form I-9), USCIS representatives said repeatedly that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Needless to say, this raised a few eyebrows and led to further debate (and wonder) regarding this seemingly simple practice.

Fast-forward to today, and USCIS is reaffirming its prohibition of section 1 pre-population through their E-Verify Connection Newsletter (issue 33) in a side-bar Q&A. Specifically, the agency notes that “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.” In addition, the agency writes that “[o]nly the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.”

This latest guidance from USCIS is a lot more definitive than what we’ve seen in the past, and would appear to completely prohibit section 1 pre-population altogether. It is worth noting, however, that ICE has not updated its guidance on this subject since 2013, and may (or may not) decide to adopt a similar stance when evaluating an employer’s use of an electronic I-9 system.

Conclusion

We often say this, but only because it’s true – employers are really caught between a rock and a hard place when it comes to I-9 compliance. It’s the one remaining area of the hiring process where efforts to automate and streamline (through technology) can get you into trouble, with a multitude of agencies no less. And yet, it’s also the one remaining area most in need of systemization and standardization, in order to avoid the potentially ruinous effects of an I-9 audit.

In light of the competing (and sometimes conflicting) guidance relating to electronic I-9 section 1 pre-population, most employers adopt a conservative approach and avoid the practice altogether (despite any possible “defenses” that may exist). For some organizations, this may involve changing your processes or even your software altogether – but it’s well worth the effort given the potential risks.

Lastly, and to end on a good note, employers can still benefit from electronic I-9 data sharing even without pre-populating section 1. A well-designed system can still accept new hire onboarding data from a wide variety of HR systems and utilize this information to help you manage I-9 obligations and deadlines. In doing so, the system can be configured to ensure that the employee completes all information in section 1, while also making sure the data is consistent with information from the other HR system. For more information on electronic I-9 tools and automation, please contact us here.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.