The Complexities of Pre-Populating the Form I-9

March 21, 2024 by Vijay Thakkar

Proper completion and processing of Form I-9 has been of the highest importance for every employer ever since the Immigration Reform and Control Act mandated its use in 1986. Known as the Employment Eligibility Verification Form, this document serves to verify the identity and employment eligibility of every new employee hired to work for U.S. employers. It consists of two main sections: Section 1, completed by the employee, and Section 2, completed by the employer. Only seemingly simple, the form requires close attention to details, as the document could be deemed incomplete or fraudulent if the audit detects any errors, and even the ones technical and easily avoidable may result in hefty fines.

Let’s probe into the complexities surrounding pre-populating the Form I-9. This practice, while potentially beneficial in terms of efficiency and accuracy, comes with its own set of challenges and compliance considerations that employers must navigate carefully.

The process of prepopulating Form I-9 entails using automated systems to complete specific sections of the form using already existing employee information. This information may encompass details such as the employee’s name, address, date of birth, social security number and, in some instances, citizenship attestation. The purpose of prepopulating is to enhance the onboarding process, minimize mistakes, boost efficiency, maintain uniformity across employee records and save time, particularly for organizations with a high influx of new hires or turnover.

A notable concern, however, involves the possibility of errors or outdated details being present in the prepopulated fields. This could lead to incomplete or incorrect forms, potentially resulting in compliance challenges and penalties for employers. Moreover, the ever-evolving nature of immigration laws and regulations means that prepopulated information might swiftly become outdated. For instance, changes in an employee’s work authorization status or name may not be accurately reflected in the prepopulated data. This underscores the necessity for regular reviews and updates of prepopulated information to uphold continual accuracy and compliance.

Additionally, an employee might opt to use a preferred name during the onboarding process which could then be prepopulated in Section 1 instead of their legal name. This situation would render Section 1 inaccurate and could potentially result in Social Security Administration/Department of Homeland Securities Tentative Nonconfirmation if the employer participates in E-Verify.

August 20, 2013
The Office of Special Counsel (OSC), responsible for enforcing the anti-discrimination provisions of the I-9 regulations, weighed in on the matter. Seema Nanda, the Deputy Special Counsel at OSC, discouraged the practice of pre-populating Section 1.

The letter discusses the practice of pre-populating Section 1 of Form I-9, where an employer uses previously obtained employee information (from job applications or interviews) to fill out this section without the direct involvement or awareness of the employee. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) discourages this practice due to several concerns.

  • This practice increases the likelihood of including inaccurate or outdated information in Section 1.
  • Outdated or inaccurate information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes, which can not only result in discrimination but also inaccurate E-Verify cases being created resulting in mismatches.
  • Employers relying on pre-populated Section 1 may overlook that an employee has limited English proficiency. This oversight can lead to a failure to provide translation or interpretation assistance, which is crucial for accurate completion of Section 1 and understanding the requirements for Section 2 documents.

November 17, 2016 / January 31, 2017
The U.S. Citizenship and Immigration Services (USCIS), Customer Service and Public Engagement Directorate (CSPED), and the Immigration Records and Identity Services Directorate (IRIS), Verification Division hosted two teleconferences on the revised Form I-9, Employment Eligibility Verification.

During these engagements they explicitly stated that “Only the Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code in Section 2 can be pre-populated. No other fields in Sections 1 or 2 can be prepopulated.”

July 30, 2019
E-Verify Connection: Issue 33 addressed the same concern and affirmed “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire. Only the following fields can be auto populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.

December 1, 2023
The joint guidance issued by US Department of Justice and USCIS asserted that a “electronic I-9 system should not automatically pre-populate the Form I-9 with employee information derived from information that the employer has accessed externally, such as by importing information from an employee’s job application.”

In summary, an employer assumes the ultimate responsibility for the accuracy of all information on Form I-9, regardless of whether it is prepopulated or manually entered. Failure to comply with the federal regulations can result in fines, penalties, and legal liabilities. To navigate these intricacies, employers must consult with legal counsel well-versed in Form I-9 compliance. This step can assist in ensuring that prepopulating practices adhere to present laws and regulations, thus mitigating the potential for costly errors.

As government agencies continue to focus onemployer compliance enforcement, employers need to make sure to do everything in their power toestablish and maintain effective I-9 policiesand get ready for the next I-9 audit. Instead of accepting Form I-9 as a mere administrative formality, employers have to secure the proper completion and handling of the documentation in a consistent and uniform manner, follow the regulations updates,make use of E-Verify, and be completely prepared for strict ICE inspections.

One of the best ways to integrate all the complex aspects of I-9 administration is to automate the process. Electronic I-9 software helps minimize risk as it comes with control mechanisms, and many features that make it easy to store I-9 forms, monitor employment authorization expiration dates, and use E-Verify, in a highly secure way.

By adopting a digital solution, employers will be able to avoid both common and complicated Form I-9 compliance violations, improve their operations, and secure significant savings, safeguarded from potentially sky-high fines and penalties.

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