The rules on employers prepopulating or filling out any part of Section 1 of Form I-9 before employees have completed it have generated a fair amount of confusion recently because Department of Homeland Security (DHS) officials have, at times, made contradictory statements.
Adding to the muddle, the regulations and published agency guidance itself are not 100 percent clear on the issue of prepopulating Section 1.
Immigration attorneys’ best advice is that companies may prepopulate Section 1 of Form I-9 as long as the person who prefills that section also completes the “Preparer and/or Translator Certification” portion of the form.
“In light of the shifting agency positions in this enforcement area, employers are advised to take [this] conservative approach,” the law firm Morgan Lewis said in an Aug. 22, 2013, client alert.
Parts of the I-9 are often prepopulated when companies use an electronic onboarding system that is connected to the form. Large organizations that add hundreds of new employees a month find the practice especially helpful.
The confusion initially stemmed from the March 2013 teleconference introducing the revised Form 1-9, when U.S. Citizenship and Immigration Services (USCIS) officials said employers cannot prepopulate Section 1 even if they also complete the Preparer/Translator Certification section. That statement, however, seemed to be a new interpretation, as businesses previously were not informed that they had violated any rule by prefilling Section 1, as long as they had also completed the Preparer/Translator section.
Then there was this exchange, on April 11, between USCIS and the American Immigration Lawyers Association (AILA).
AILA: “During the March 11 teleconference, USCIS representatives stated that an employer may not pre-populate Section 1, even where the preparer section is completed. This is contrary to public statements made by ICE on multiple occasions that pre-population may be permissible if the preparer/translator section is completed. Indeed, the advice appears contrary to USCIS’s own written response to public comments solicited during notice and comment for the revised I-9 form.
USCIS response: “USCIS’s position has not changed. DHS regulations require that the employee complete Section 1 of Form I-9. Employers can offer employees electronic tools to facilitate the Section 1 completion process, as long as this regulatory requirement and the regulatory requirements for the electronic generation of the Form I-9 continue to be met.
When an individual other than the employee completes Section 1 of the Form I-9, the “Preparer and/or Translator Certification” portion of Section 1 must be completed. Therefore, if the employer is assisting the employee to fill out Section 1 of the Form I-9, the employer should complete the Preparer and/or Translator Certification. The individual who is actually taking the information from the employee and inputting it into Section 1 must sign the “Preparer and/or Translator Certification” portion of Section 1. The employee must still verify that the information inputted in Section 1 is correct and then sign and date the attestation in Section 1 of the Form. The employer is ultimately responsible for proper completion of Form I-9, including ensuring proper completion of Section 1.”
This response is compatible with the agency’s answer in the online I-9 Central FAQs:
Q. Should I complete the Preparer/Translator section if the company automatically fills out Section 1 for the new employee?
A. Yes, if Section 1 is prepared by someone other than the new employee, the Preparer/Translator section should be completed.
It should also be noted that the Justice Department’s anti-discrimination watchdog, Office of Special Counsel, discourages the practice of an employer prepopulating Section 1 with previously obtained employee information. “This practice increases the likelihood of including inaccurate or outdated information in Section 1 (for instance, from changes in legal name, address or immigration or citizenship status). Outdated or inaccurate information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes. This is particularly true if an employer does not provide an opportunity for the employee to review the information that was prepopulated and does not build in a method for making corrections. Further, if an employer uses the outdated or inaccurate information to submit an E-Verify query, a mismatch may result because the status or name in government databases conflicts with the employer’s outdated information.”
“With such a variance in how to treat Section 1 prepopulation, it’s no wonder employers are confused,” said Ann Cun, immigration attorney and counsel for LawLogix Group, a provider of electronic I-9 compliance and immigration case management software. “And while the issue itself may seem rather trivial, the fact remains that employers are ultimately liable for their I-9 compliance program.”
Cun stresses that companies should do their due diligence when selecting an electronic I-9 vendor.
“Does their system accommodate different prepopulation configurations? What kind of error checking exists? And, most importantly, how are they keeping up with the constant changes in this area?”
Roy Maurer is an online editor/manager for SHRM. Follow him at @SHRMRoy
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