Pre-Filled and Pre-Populated I-9 Forms
No good deed goes unpunished! We’re talking about the I-9 Form and the good deed of pre-filling out Section 1 with your Employee’s information. The issue with pre-filling (or pre-populating) Section 1 of the I-9 Form has unnecessarily confused employers. Today, we’ll tackle this issue head on.
PRE-FILLING THE I-9 FORM SECTION 1 (PAPER I-9 FORMS)
The M-274 (page 3) and ICE officials have said, on more than one occasion, “Section 1 must be filled out by the employee.” Pre-filling occurs when somebody other than the employee fills out any portion of Section 1 of the I-9 Form in advance of the employee completing Section 1. While this is permissible, that individual must also complete the “Preparer and/or Translator” Certification block on the I-9 form. Yet, there still seems to be confusion about intent or otherwise related to pre-filing Section 1. Why all the confusion? I asked Sharon Mehlman, Partner at Larrabee | Mehlman | Albi | Coker LLP in San Diego, California, who explained:
Many employers seem to take the position that the Preparer and/or Translator Certification section should only be completed if the employee has a language barrier or a physical disability preventing them from completing Section 1, but this is not the case. Any time someone other than the employee completes Section 1 for any reason, the Preparer and/or Translator Certification section also needs to be completed and signed.
Naturally, I’m sure there are those of you wondering, “What if somebody fills in information afterthe employee completes and signs Section 1?” The same requirements would also apply. It is not the timing that is the issue but the act of completing a section that is specifically reserved for an employee. If you are not the employee and you are completing any portion of Section 1, you must also complete the Preparer and/or Translator Certificate section. In fact, USCIS’ I-9 Centralwebsite was recently updated to answer this specific question:
Q. Should I complete the Preparer/Translator section if the company automatically fills out Section 1 for the new employee?
A. Yes, if Section 1 is prepared by someone other than the new employee, the Preparer/Translator section should be completed.
PRE-POPULATING THE I-9 FORM SECTION 1 (ELECTRONIC I-9 FORMS)
In the electronic world, when certain fields within Section 1 are already filled with data, before an employee receives the I-9 Form, it is called pre-population. This often occurs when companies use another electronic system in the onboarding process that is connected to the I-9 form. For large U.S. employers that have to process hundreds of I-9 Forms a month, pre-populating an electronic I-9 Form with employee information may be the best thing since sliced bread, from a practical perspective. Unfortunately, the government isn’t exactly keen on this practice. During the AILA Annual Conference in San Diego June 2011, Harold Beasley, Jr., the Worksite Enforcement Supervisor for ICE, confirmed that Section 1 should not contain pre-populated fields without the Preparer and/or Translator Certification section also being completed. (Read more here.) In fact, this issue has been confirmed repeatedly in recent Worksite Enforcement Conferences attended by myself and by my colleagues at LawLogix. What happens if your organization is using an electronic I-9 software that automatically pre-populates fields in Section 1? Here are a few questions you MUST ask and seriously consider your vendor’s answers:
1) Can the pre-population functionality in Section 1 be turned “off”? Well-designed compliance software should always empower organizations the option of turning this type of functionality “on” or to leave it “off.” ICE has repeatedly confirmed that it audits companies, not software programs. It is the organization’s responsibility to ask the questions and make sure it selects a vendor that meets its compliance needs.
2) If the pre-population functionality in Section 1 is turned “on,” how efficiently will it allow you to complete the Preparer and/or Translator Certificate section? If after careful consideration, your organization elects to pre-populate Section 1, how well will your electronic I-9 software enable your organization to complete the necessary Preparer and/or Translator Certification section? If the system requires the company to manually fill in each one, it takes away from the efficiency of pre-population.
3) If the regulations change, how well and how quickly will the software be updated to reflect those changes? Vendors who lack in-house expertise will miss out when regulations are updated that affect how electronic software should be configured.
Electronic I-9 software can be your organization’s best friend or unintended worst nightmare. During the Stanford Worksite Enforcement Symposium last week, we heard a horror story regarding one organization’s electronic I-9 software tribulations.
The organization had initiated multiple I-9 forms using a particular electronic I-9 software. It wasn’t until after one of the HR employees resigned that the organization conducted an audit and discovered I-9 forms for certain employees were missing from the electronic database. After inquiring further, it was discovered the electronic I-9 software had systematically (and automatically) deleted I-9 records for employees who had completed Section 1 but had contained overdue, un-verified Section 2.
Yikes! You can imagine the alarm this particular organization experienced when it realized that the software it was relying on automatically deleted I-9 records, leaving that organization at an even greater risk of non-compliance. Start asking some serious questions but don’t be surprised if you don’t like the answers. I-9 Compliance is no joke and certainly not an easy field to navigate. Accruing accurate information is the first step on the road to compliance.