Ensure Electronic I-9 Compliance Amid Increased Enforcement

Employers are facing heightened scrutiny and increased workplace immigration enforcement under the Trump administration, including potential worksite raids, Form I-9 audits, and inspections of electronic I-9 systems.  

An increasing number of employers are using electronic I-9s, which can streamline the employment eligibility verification process, save time, reduce errors, and provide secure storage and easy retrieval during audits or investigations by U.S. Immigration and Customs Enforcement (ICE). 

Paper forms are still being used, mainly among smaller businesses and for deskless workers (such as those working in construction or manufacturing), but more and more organizations are using an electronic system.  

“As employers have sought to go electronic in their hiring and onboarding process, there has been a steady migration toward electronic I-9 systems over the last 20 years, and it’s the exception for larger employers to continue to create paper forms,” said Katie Minervino, an attorney and leader of Pierce Atwood’s immigration practice group based in Portland, Maine. 

ICE first authorized employers to electronically complete, sign, and retain I-9 forms in 2006.  

To achieve compliance, employers must implement a reliable electronic system that accurately captures all necessary information on Form I-9, ensures proper document verification, maintains detailed audit trails, restricts access to sensitive data, and provides regular training for HR staff on using the system correctly.  

“Employers need to make sure these systems are doing what they are supposed to do,” said John Fay, director of product strategy at Equifax Workforce Solutions and an expert on I-9 issues. “Now more than ever, as we’re seeing notices of inspection at an increased pace, the single biggest risk is using a system that is not designed for the very specific regulations put in place for electronic I-9s. And the kicker is that if a system has a material failure, the government can invalidate all the I-9s created in that system.” 

ICE has made clear that regulatory requirements are the responsibility of the employer and not the system vendor. 

“If you are using an electronic I-9 system that has a fundamental deficiency, such as not having a satisfactory audit trail, or [if it] doesn’t allow corrections to be made, you are at 100% risk of noncompliance,” Minervino said.  

She added that employers also need to be aware that whenever they introduce an electronic component to the creation or storage of I-9s, such as scanning paper forms into PDFs, they are subject to the standards set forth in the regulations that cover electronic I-9s. 

Employers should also be aware that ICE does not certify or endorse any I-9 software or vendors, so they need to be cautious of any system claiming government endorsement, certification, or approval.  

Areas of Concern

A few of the most common areas of concern related to electronic I-9 compliance are pre-population of the form, electronic signatures, and audit trails.  

Pre-population is when information about workers, such as their names, addresses, dates of birth, Social Security numbers, or even citizenship attestations, is pre-filled in the electronic I-9 from external sources, such as a company’s applicant tracking system or onboarding platform.   

“This is most common when an electronic I-9 is part of a bigger HR tech system,” Minervino said. “From an efficiency standpoint, there is an incentive to carry over information from a screening component through to different parts of your hiring or onboarding system, including the I-9, but the risk is that the system doesn’t track when the information is inputted or who inputted it, or the employee could take the position that the prefilled information was not what they intended to use and they couldn’t edit it.”   

Fay added that the information could be incorrect; the employee may not have even read or technically completed the form as the regulations state.  

“One solution is presenting the information to be prefilled to the employee before filling out Section 1, asking the employee to review it and make an affirmative action to complete that section of the form,” Fay said.  

Minervino said that employers can work with vendors to create an opt-in function allowing the employee to enter and edit the information specific to Section 1 of the form or make it so the form does not pre-populate.  

Electronic signatures and the form’s attestation requirement are other issues that come up with electronic I-9s.  

“The regulations have very specific signature requirements, including a method to acknowledge that the Form I-9 attestation has been read,” Fay said. “The system must also create and preserve a record verifying the identity of the person signing the form.” 

Essentially, an additional step must be taken and preserved to show that the signatory has read the “under penalty of perjury” attestation before attaching an electronic signature. 

That requirement could be fulfilled in a variety of ways, including a checkbox or a question to answer.  

Regulations require that employers keep audit trails of electronic I-9s, which are records showing what actions have been taken by whom and when. Experts say that not all vendors offer audit trails that meet regulatory standards.     

“The system’s audit trail is the most important element of electronic I-9 compliance,” Fay said. “You want to ensure that any time that an electronic I-9 was created, completed, or modified, there is a secure record of who made the change, when did it occur, and the specific action taken. Ultimately, that is what the government looks at when investigating for fraud.” 

Minervino recommended assessing the audit trail functionality with the vendor on an ongoing basis. “Have an attorney present to review it and ask questions,” she said. 

Fay added that the best way to evaluate an audit trail is to go through as many I-9 scenarios as possible, including verifying remote hires, conducting reverification, and practicing corrections, and then examining the resulting audit trail to make sure everything was captured.  

Employers also need to be careful not to defer to an electronic system that may result in discriminatory actions by the employer by requiring or rejecting certain documents or otherwise unlawfully limiting employment, Minervino said. 

“For example, systems may have limits that unduly restrict acceptance of a document that is valid for the I-9 but may not be included in an electronic system as a drop-down option,” she said. “It’s always an option to complete a paper form if an employer runs into a roadblock in lawfully completing an I-9 in an electronic system.” 

Vetting Vendors 

Employers auditing compliance with current or potential vendors should first read and understand the regulations that establish the standards for electronic I-9 creation and storage, Minervino said.  

“It’s good practice to ask the vendor to walk through the I-9 process from start to finish,” she said.  

Fay said that when evaluating a system, employers should ask to see all of the different workflows pertinent to their organization. “If you have remote hires, look at how the system creates a remotely completed I-9. If you use E-Verify, ask to see that process demonstrated,” he said.  

Employers should review the system’s audit trail and make sure that it is clear who did what and when. “That’s what the government wants to know and will be looking at during an inspection,” Minervino said.  

Invite immigration counsel to sit in on this assessment, as they know the right questions to ask.  

“Be aware of rapidly changing developments in the I-9 space when assessing vendors,” Minervino said. “Employers should be vetting their system on an ongoing basis as policies and regulations change.”