ABCs of Immigration: Electronic Form I-9 Systems

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Bruce Buchanan, The I-9 And E-Verify Handbook.]

Employers are eligible to electronically file and store Forms I-9. With the continuing crackdown on employers of undocumented workers and vendors offering electronic Form I-9 products, employers have started deciding whether it is more beneficial to abandon the paper forms and shift to digital.

Can a form I-9 be completed electronically?

An April 2005 law authorized employers to retain Employment Eligibility Verification Forms (Forms I-9) in an electronic format. U.S. Immigration and Customs Enforcement (ICE) issued rules establishing standards for the use of electronic Forms I-9 in June 2006, subsequently encouraging employers’ electronic storage of their Forms I-9.

Why would companies want to switch to electronic Form I-9 systems?

There is a litany of reasons supporting companies’ preference for electronic FormI-9 systems over paper-based alternatives:

• Most of the major vendors utilize a web-based system, meaning employers do not need to install software and only need internet access and a web browser.
• Employers are incapable of completing Form I-9 unless the information is properly entered. Many vendors offer systems which guide workers and Human Resource officials through proper completion of the forms.
• Some of the systems are “intelligent” and are capable of ensuring that only appropriate documents show up in Section 2, using the answers submitted in Section 1.
• Some systems allow for prefilling certain information which remains constant from applicant to applicant, such as an employer’s name and address, in Section 2 of the forms.
• The better electronic Form I-9 systems include “help” features making it easier for Human Resource officials and employees to answer questions on the Form I-9.
• Employers with employees at multiple sites can more easily monitor I-9 compliance at remote locations.
• Re-verification is automated, and it is less likely for employers to incur liability from an inadvertent failure to update an employee’s I-9. Many systems send e-mail reminders.
• Employers can integrate the system with E-Verify or other electronic employment verification systems to minimize the chances of unauthorized workers becoming employed.
• Using an electronic Form I-9 system reduces the risk of identity theft from stolen paper Form I-9 records, a perpetual issue. By law, electronic Form I-9 software must have built-in security systems to protect the privacy of employees and the integrity of the data.
• Using an electronic Form I-9 system can make it easier to respond to U.S. Immigration and Customs Enforcement (ICE) audits. In addition to the audit trails required by the regulation, some of the systems archive communications relating to the Form I-9.
• Electronic Form I-9 systems can integrate with payroll and employee database systems.
• Data from the electronic Form I-9 can be automatically uploaded to E-Verify. Several electronic Form I-9 vendors are federally approved E-Verify employer agent, which allows them to automate an employer’s data entry in E-Verify.
• AN electronic Form I-9 system allows employers to automatically purge the Forms I-9 for individuals no longer employed, and those for whom the Forms I-9 may no longer be retained.
• Some of the systems include instructions in multiple languages for employees who have difficulty understanding English.
• Employers have the possibility of saving costs by storing Forms I-9 electronically as opposed to using conventional filing and storage of paper copies or converting paper forms to microfilm or microfiche.
• Electronically retained Forms I-9 are more easily searchable and, therefore, are often more time efficient for Human Resource personnel. The better systems produce a variety of reports which make monitoring Form I-9 compliance easier.
• Some systems also track the expiration dates for visas and Forms I-94.

Are there downsides to using an electronic Form I-9 system?

There are some potential issues facing the utilization of a digital system, including the following:

• No perfectly secure electronic systems exist, though the law does require electronic Form I-9 vendors and their employer customers to implement security measures.
• The electronic systems do not completely eliminate identity theft, since an employee can present doctored identification and employment authorization paperwork making it appear that the employee is a different person. E-Verify implemented a system in 2013 allowing it to “lock” a Social Security number if it is suspected to be compromised due to identity theft.
• Aside from indirect costs such as storage and training, paper Forms I-9 are free of charge. On the other hand, electronic systems generally charge either a monthly or a per-employee fee, but the per-employee fee is usually no more than a few dollars per employee.
• Most Forms I-9 are reliant upon internet access. When internet is unavailable, the Form I-9 may not be able to be completed. In these cases, an employer may be able to use a paper Form I-9.
• Employers wanting to change electronic Form I-9 vendors should be aware of past litigation regarding the return of Form I-9 data to employers from the initial electronic Form I-9 vendors.

What requirements must electronic Form I-9 systems meet?

The rules issued by U.S. Immigration and Customs Enforcement (ICE) in June 2006 established the standards both for completing forms electronically and scanning and storing existing Forms I-9. Since the change in law, various software products have been released to the market allowing for electronic filing of Forms I-9. Advantageous aspects of using such a system include improving accuracy in completing forms and setting up automated systems prompting employers to re-verify Forms I-9 for employees with temporary work authorizations.

The U.S. Department of Homeland Security (DHS) regulations mandate that electronically generated Forms I-9 adhere to the following requirements:

• The forms must be legible when seen on a computer screen, microfiche, or microfilm, or when printed on paper.
• The name, contact, and order of data must not be altered form the paper version of the form.
• There are reasonable controls to ensure the accuracy and reliability of the electronic generation or storage system.
• There are reasonable controls designed to prevent and detect the unauthorized or accidental creation, deletion, or deterioration of stored Forms I-9.
• The software must have an indexing system allowing for searches by any field.
• The software must not be subject to any agreement that would limit or restrict access to and use of the electronic generation system by a government agency on the premises of the employer, recruiter, or referrer for a fee (including personnel, hardware, software, files, indexes, and software documentation).
• Compression or formatting technologies may be used as long as certain standards are met.
• There is a system to identify anyone who has created, accessed, viewed, updated, or corrected an electronic Form I-9 and also to see what action was taken.

Employers that know or should reasonably have known that an action or lack of action will result in loss of electronic Form I-9 can be held liable under the Immigration Reform and Control Act (IRCA).

Employers may use more than one kind of electronic Form I-9 system as long as each system meet the standards previously mentioned.

Employers utilizing an electronic Form I-9 system must also make available upon request descriptions of the electronic generation and storage systems, the indexing system, and the business process that create, modify, and maintain the retained Forms I-9 and establish the authenticity and integrity of the forms, such as audit trails. The Form I-9 software vendor should, of course, provide such documentation to the employer, though this is not a requirement in the regulations.

How is an electronic Form I-9 “signed” by an employee and employer?

DHS requirements dictate that electronic Forms I-9 be “signed” electronically through a system whereby the individual providing the information will acknowledge that he or she has read the attestation.

The signature needs to be affixed to the document at the time the attestation is provided. The form must be printed and provided to the person providing the signature at the time the document is signed. This requirement is applicable to the employee in addition to the and employer, recruiter, or referrer for a fee.

What are the Form I-9 record-keeping requirements for electronic Forms I-9?

Employers are required to keep Forms I-9 for all current employees, though employers can destroy the forms of certain terminated employees. In the event of a governmental agency audit, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format.

What privacy protections are workers afforded upon electronic completion of Forms I-9?

Employers who have electronic Form I-9 systems are required to implement a records security program ensuring access to electronic records is limited exclusively to authorized personnel. It is also the responsibility of the employer to ensure that those records are backed up, that employees are properly trained to minimize the risk of records being altered, and that whenever a record is created, accessed, viewed, updated, or corrected, a secure permanent record is created establishing the identity of the individual who accessed the record.

How does an employer that uses an electronic Form I-9 system respond to an Immigration and Customs Enforcement audit?

Normally, original Forms I-9 must be provided to U.S. Immigration and Customs Enforcement (ICE) examiners for inspection. If an employer retains electronic versions of Forms I-9, the employer is required to retrieve and reproduce the specific forms as requested by the inspecting officer in addition to the associated audit trails indicating everyone who accessed the computer systems and the actions performed on the system in a specified period of time. The inspecting officer should be provided with the necessary hardware and software, and access to personnel and documentation to locate, retrieve, read, and reproduce the requested Form I-9 documentation and associated audit trails, reports, and other related data.

Can a company using an electronic Form I-9 system batch-load data to E-Verify?

Yes. The U.S. Department of Homeland Security (DHS) has a real-time batch method which requires a company develop an interface between its personal system or electronic Form I-9 system and the E-Verify database. Employers interested in more information regarding this method, including design specifications, should call U.S. Citizenship and Immigration Services (USCIS) at 800-741-5023.

Can employers convert existing Forms I-9 into an electronic format?

Yes. Many employers scan and index their current Forms I-9 and store them electronically using electronic Form I-9 software.

 

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