The Department of Homeland Security (DHS), in tandem with the Department of Justice (DOJ), has released joint guidance pertaining to employers who either use a “home-grown” electronic I-9 system, or contract to use a platform supplied by an I-9 vendor. This guidance seeks to close the gaps or highlight government positions that may not have been well-publicized in the past. Employers should take the time to carefully examine the newly released guidance to ensure compliance with all positions detailed.
This five-page guidance is chock full of information employers using or seeking to use an electronic I-9 platform need to know. Some of the high points include:
- Guidance on pre-population—No information garnered from outside processes may be used to populate the I-9, be that from the job application or other information garnered during the hiring or onboarding processes. (Vendors allowing this methodology are putting clients at a high risk of being found non-compliant in the event of an audit.)
- Compliance with applicable regulations surrounding electronic signatures and audit trails.
- Guidance on usage of E-Verify in accordance with that spelled out in the E-Verify Memorandum of Understanding.
- A reminder that employers should ensure that I-9 completers are fully trained on platform usage and alternative methods of completion in the event of an outage – which is hinting that employers should have a robust Standard Operating Procedure (SOP) manual thoroughly detailing the procedures that should be followed.
The guidance doesn’t necessarily release anything new but clarifies and promotes guidance that may not have been as well-known as other items. It also should serve as an indication to employers they need to ensure they are performing adequate due diligence prior to contracting for or building their own electronic I-9 platform. Paperwork violations were just “enhanced” to new levels and now range from $281-2789 per relevant individual. Given the enhancement factors built into the fine schedules, the average fine per I-9 usually lands around the $2,000 mark, so it doesn’t take a slew of mistakes to arrive at a significant penalty.
Given this updated information and new fine schedules, it would not be surprising to see audits rise in the very near future, especially with the introduction of the new Form I-9 and alternative procedures for remote completion.
Due diligence is a major key to compliance and employers need to ensure the platform and/or vendor they use aligns with what is laid out by DHS and DOJ. Non-compliance can often lead to expansion of audits or investigations to other company sites or departments, or even criminal penalties depending on the severity of the violations. Those who have not yet properly analyzed their platforms against this new guidance should do so as soon as possible and adjust accordingly.
