Although the rules are clear that Section 1 of the I-9 form must be completed by the employee, the recent introduction of the new Form I-9 in a PDF fillable format and the more widespread use of computerized systems for the I-9 process have raised questions about how information may be entered into Section 1.
Previous information from the Department of Homeland Security (prior to the release of the new form) indicated that it was permissible for someone other than the employee to enter information into Section 1, so long as the Preparer/Translator Section as also completed. Further, many newer the electronic systems for the preparation of the Form I-9 enable the pre-population of information in Section 1 through the system.
ICE Homeland Security Investigations (HSI) Worksite Enforcement Unit has now confirmed that any pre-population of Section 1 of the Form I-9, such as by an electronic I-9 program, is impermissible – regardless as to whether the employee provided the original information that is pre-populated and regardless as to whether the preparer/translator section is completed.
This prohibition against pre-population by electronic I-9 programs applies to both an employer’s existing and future electronic I-9 forms.
Accordingly, employers must be careful about their use of electronic systems for the ‘streamlined’ preparation of the I-9 form. It is important that you ensure that any programs or computerized systems require that the employee fill out Section 1 him or herself. Since ICE has now confirmed this, it is very likely that future I-9 Inspections conducted by ICE will involve confirming your internal procedures and a review of any programs/systems you employ in the execution of the I-9.
Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or firstname.lastname@example.org.