by Sharon Mehlman, ABIL Lawyer and Kimberley Best Robidoux
The I-9 and E-Verify Blog
There are some wonderful electronic I-9 programs out there, and like any other product on the market, some that are not so good. So, Buyer Beware! There have been articles and postings on issues of compliance and what to look for when purchasing an electronic I-9 program. However, the focus of this posting is slightly different and addresses issues that we have been encountering with increased frequency in our practice. It is what we would call a “compliance loophole” and it has to do with whether a system can be compliant if all of its components may not be. The USCIS Handbook for Employers (M-274) lists some of the factors that USCIS (and ICE) are focused on to determine compliance and those will not be discussed here. As a reminder, neither USCIS, ICE or any other government agency involved in worksite enforcement has or will give a “seal of approval” to a specific electronic I- 9 program. Therefore, we can’t stress enough that it is the employer’s responsibility to make sure that any program that they purchase and use is compliant.
The Initial Review of an Electronic I-9 Program
An employer looking for an electronic I-9 program will typically engage in a formal “Request for Proposal” process or simply gather recommendations from colleagues and research publicly available sources (Internet search, trade show literature, etc.). Either way, the employer will likely have a laundry list of “requirements,” not least of which is whether the system will help them achieve total compliance with the I-9 rules in the M-274 Handbook. To make this assessment, they will ask the vendor some fundamental questions, see a few demos, and occasionally talk with counsel.
So let’s assume that the system has been reviewed and the employer determines that the overall program is compliant with the M-274 guidelines. Is that enough? The answer, in our opinion, is NO. While the assumption might be that a system either is or is not compliant, there is another level which is often overlooked – and that is, are any/all options within the program compliant? This issue is where we believe that employers (and even certain electronic I-9 program vendors) may be at risk.
The assumption, that all available options within a program are also compliant, is a dangerous one to make and in our experience, where some programs fall short. When an employer sees a demo of an I-9 system and reads all of the literature, they naturally assume that all options made available to them within the system would be in compliance and if specific ones are not, the vendor will advise appropriately. Many vendors, on the other hand, often take the position that it is the employer making the ultimate decision on which options to choose and they should seek legal counsel in doing so to make sure the options are in compliance. Some vendors will advise that in general, the employer should seek legal advice but not usually on an option-by-option basis. In addition, many employers do not have current legal counsel and it may seem like overkill to hire someone for this issue.
In reality, most employers simply won’t seek legal advice, and that will be to their detriment, in the case of an ICE audit. (In defense of the electronic I-9 vendors, we understand that they have many different clients to answer to and that the clients may be requesting or even demanding that options be made available for perceived efficiency, regardless of compliance. However, it is the opinion of the authors that those vendors should require the employers to affirmatively acknowledge that the options that they are requesting may not be in compliance based on current agency (including USCIS/ICE) guidance.)
Compliant or Non-Compliant?
At this point, you may be thinking – what are they talking about? We haven’t seen this with any programs that we’ve reviewed. The unfortunate fact is that employers don’t always dive deeply enough into all of the available options nor do they get attorneys involved in reviewing a system in detail. Attorneys themselves also may not be familiar enough with the electronic programs to know the available options and advise accordingly.
The following are some examples we’ve seen where options may change a program from compliant to non-compliant:
1. Address in Section 1 of Form I-9
Section 1 of Form I-9 requests the employee’s “Street Address.” This appears to be asking where the person lives, as compared to a mailing address for example. However, some employers have allowed employees to use a P.O. Box in this section. In June of 2011, USCIS issued FAQs regarding Form I-9 completion and one of the questions asked was whether a P.O. Box could be used in Section 1 of Form I-9. USCIS stated that only a street address could be used in that section. (See FAQ listed on the I-9 Central portion of USCIS.gov)
Simple enough – right? Well, did you know that in spite of this guidance there are electronic I-9 programs on the market that allow the employer the option to use either a P.O. Box or a street address in Section 1 of the electronic form? The reasoning is that some employers, perhaps advised by their own counsel or driven by consensus, still want to have the option to accept a P.O. Box. In some instances, letting the employer know that this option is not compliant will get them to retreat from their position but for others, maybe not. It is the opinion of the authors that only options which are in compliance with current USCIS guidance should be given as options in the I-9 programs. We can understand that there are some issues of I-9 completion that are not black and white and where even ICE and USCIS disagree. In those, we would agree with providing options in the program with the caveat that the employer should discuss with legal counsel. However, for those issues where clear guidance has been provided, the focus should be on compliance and not preference and convenience.
2. Pre-population of employee information
Some electronic I-9 programs have the ability to connect to other existing programs that an employer may have, such as an HRIS database. Certain data fields are then sent from the HRIS system to the electronic I-9 program, and the I-9 is subsequently pre-populated with the new hire’s information, such as name, date of birth, address and social security number. The employee can then review and correct Section 1 as needed and then sign and date the form. This may be seen as a convenience for the employer and the employee – but is it compliant?
According to the Form I-9 (and the M-274) only the employee may complete Section 1 of the form. If anyone provides assistance to the employee with completion of the section, the preparer/translator section of the Form should be completed as well. Therefore, if Section 1 is completed due to the employer’s pre-population, this is not in compliance unless the preparer/translator section of the form is also completed. This issue was recently confirmed by Harold Beasley, Jr., Worksite Enforcement Supervisor, ICE at the AILA Annual Conference in San Diego.
Some programs allow the employer to turn this function off or on, others do not. Most do not automatically complete the preparer/ translator section when the feature is on, and there is also the complicated issue of “who” would be listed as the preparer/translator in that instance. Would it be the person signing section 2 or can a computer program itself be listed? Again, is it the employer’s responsibility or the vendor’s responsibility to address these issues?
3. Changes to the list of acceptable documents
According to the M-274, you may use an electronic I-9 form as long as “no change is made to the name, content, or sequence of the data elements and instructions and no additional data elements or language are inserted.” (see page 24 of the 6/1/11 version of the M-274). In many of the programs, options have been added to make the process more efficient. In addition, these options seek to simplify the process so that common errors can be avoided.
One example is having only certain documents, and not others, appear on the drop down menu for Section 2. The available options are based on which box is checked in Section 1, regarding a person’s status. For example, if the person checks the box that they are a US citizen, the option for a permanent resident card will not appear. If a person checks that they are a permanent resident, a US passport card or passport will not appear. Some programs do this automatically, while others have this as a feature to be turned on or off.
Since an employer is required to provide the individual with the list of acceptable documents when completing the I-9 form, is this “assistance” in compliance? Does the filtered drop down menu noted above amount to an employer requesting or advising as to which documents can and cannot be provided? There are differences of opinion on this and at a minimum, it is important that the full list of documents be available to the employee somewhere, either in paper or electronically elsewhere in the program. In addition, this question was specifically asked to the Dept. of Justice Office of Special Counsel (OSC) by an electronic I-9 software vendor in May of 2011. OSC stated that they could not provide specific information on a particular program. However, they were concerned that under certain circumstances this type of option in a program could lead to an OSC claim. (See letter available on the OSC web site here.) In light of this OSC opinion, it is important to make sure that an option regarding this feature be reviewed carefully with an attorney.
The I-9 and E-Verify Blog
There are some wonderful electronic I-9 programs out there, and like any other product on the market, some that are not so good. So, Buyer Beware! There have been articles and postings on issues of compliance and what to look for when purchasing an electronic I-9 program. However, the focus of this posting is slightly different and addresses issues that we have been encountering with increased frequency in our practice. It is what we would call a “compliance loophole” and it has to do with whether a system can be compliant if all of its components may not be. The USCIS Handbook for Employers (M-274) lists some of the factors that USCIS (and ICE) are focused on to determine compliance and those will not be discussed here. As a reminder, neither USCIS, ICE or any other government agency involved in worksite enforcement has or will give a “seal of approval” to a specific electronic I- 9 program. Therefore, we can’t stress enough that it is the employer’s responsibility to make sure that any program that they purchase and use is compliant.
The Initial Review of an Electronic I-9 Program
An employer looking for an electronic I-9 program will typically engage in a formal “Request for Proposal” process or simply gather recommendations from colleagues and research publicly available sources (Internet search, trade show literature, etc.). Either way, the employer will likely have a laundry list of “requirements,” not least of which is whether the system will help them achieve total compliance with the I-9 rules in the M-274 Handbook. To make this assessment, they will ask the vendor some fundamental questions, see a few demos, and occasionally talk with counsel.
So let’s assume that the system has been reviewed and the employer determines that the overall program is compliant with the M-274 guidelines. Is that enough? The answer, in our opinion, is NO. While the assumption might be that a system either is or is not compliant, there is another level which is often overlooked – and that is, are any/all options within the program compliant? This issue is where we believe that employers (and even certain electronic I-9 program vendors) may be at risk.
The assumption, that all available options within a program are also compliant, is a dangerous one to make and in our experience, where some programs fall short. When an employer sees a demo of an I-9 system and reads all of the literature, they naturally assume that all options made available to them within the system would be in compliance and if specific ones are not, the vendor will advise appropriately. Many vendors, on the other hand, often take the position that it is the employer making the ultimate decision on which options to choose and they should seek legal counsel in doing so to make sure the options are in compliance. Some vendors will advise that in general, the employer should seek legal advice but not usually on an option-by-option basis. In addition, many employers do not have current legal counsel and it may seem like overkill to hire someone for this issue.
In reality, most employers simply won’t seek legal advice, and that will be to their detriment, in the case of an ICE audit. (In defense of the electronic I-9 vendors, we understand that they have many different clients to answer to and that the clients may be requesting or even demanding that options be made available for perceived efficiency, regardless of compliance. However, it is the opinion of the authors that those vendors should require the employers to affirmatively acknowledge that the options that they are requesting may not be in compliance based on current agency (including USCIS/ICE) guidance.)
Compliant or Non-Compliant?
At this point, you may be thinking – what are they talking about? We haven’t seen this with any programs that we’ve reviewed. The unfortunate fact is that employers don’t always dive deeply enough into all of the available options nor do they get attorneys involved in reviewing a system in detail. Attorneys themselves also may not be familiar enough with the electronic programs to know the available options and advise accordingly.
The following are some examples we’ve seen where options may change a program from compliant to non-compliant:
1. Address in Section 1 of Form I-9
Section 1 of Form I-9 requests the employee’s “Street Address.” This appears to be asking where the person lives, as compared to a mailing address for example. However, some employers have allowed employees to use a P.O. Box in this section. In June of 2011, USCIS issued FAQs regarding Form I-9 completion and one of the questions asked was whether a P.O. Box could be used in Section 1 of Form I-9. USCIS stated that only a street address could be used in that section. (See FAQ listed on the I-9 Central portion of USCIS.gov)
Simple enough – right? Well, did you know that in spite of this guidance there are electronic I-9 programs on the market that allow the employer the option to use either a P.O. Box or a street address in Section 1 of the electronic form? The reasoning is that some employers, perhaps advised by their own counsel or driven by consensus, still want to have the option to accept a P.O. Box. In some instances, letting the employer know that this option is not compliant will get them to retreat from their position but for others, maybe not. It is the opinion of the authors that only options which are in compliance with current USCIS guidance should be given as options in the I-9 programs. We can understand that there are some issues of I-9 completion that are not black and white and where even ICE and USCIS disagree. In those, we would agree with providing options in the program with the caveat that the employer should discuss with legal counsel. However, for those issues where clear guidance has been provided, the focus should be on compliance and not preference and convenience.
2. Pre-population of employee information
Some electronic I-9 programs have the ability to connect to other existing programs that an employer may have, such as an HRIS database. Certain data fields are then sent from the HRIS system to the electronic I-9 program, and the I-9 is subsequently pre-populated with the new hire’s information, such as name, date of birth, address and social security number. The employee can then review and correct Section 1 as needed and then sign and date the form. This may be seen as a convenience for the employer and the employee – but is it compliant?
According to the Form I-9 (and the M-274) only the employee may complete Section 1 of the form. If anyone provides assistance to the employee with completion of the section, the preparer/translator section of the Form should be completed as well. Therefore, if Section 1 is completed due to the employer’s pre-population, this is not in compliance unless the preparer/translator section of the form is also completed. This issue was recently confirmed by Harold Beasley, Jr., Worksite Enforcement Supervisor, ICE at the AILA Annual Conference in San Diego.
Some programs allow the employer to turn this function off or on, others do not. Most do not automatically complete the preparer/ translator section when the feature is on, and there is also the complicated issue of “who” would be listed as the preparer/translator in that instance. Would it be the person signing section 2 or can a computer program itself be listed? Again, is it the employer’s responsibility or the vendor’s responsibility to address these issues?
3. Changes to the list of acceptable documents
According to the M-274, you may use an electronic I-9 form as long as “no change is made to the name, content, or sequence of the data elements and instructions and no additional data elements or language are inserted.” (see page 24 of the 6/1/11 version of the M-274). In many of the programs, options have been added to make the process more efficient. In addition, these options seek to simplify the process so that common errors can be avoided.
One example is having only certain documents, and not others, appear on the drop down menu for Section 2. The available options are based on which box is checked in Section 1, regarding a person’s status. For example, if the person checks the box that they are a US citizen, the option for a permanent resident card will not appear. If a person checks that they are a permanent resident, a US passport card or passport will not appear. Some programs do this automatically, while others have this as a feature to be turned on or off.
Since an employer is required to provide the individual with the list of acceptable documents when completing the I-9 form, is this “assistance” in compliance? Does the filtered drop down menu noted above amount to an employer requesting or advising as to which documents can and cannot be provided? There are differences of opinion on this and at a minimum, it is important that the full list of documents be available to the employee somewhere, either in paper or electronically elsewhere in the program. In addition, this question was specifically asked to the Dept. of Justice Office of Special Counsel (OSC) by an electronic I-9 software vendor in May of 2011. OSC stated that they could not provide specific information on a particular program. However, they were concerned that under certain circumstances this type of option in a program could lead to an OSC claim. (See letter available on the OSC web site here.) In light of this OSC opinion, it is important to make sure that an option regarding this feature be reviewed carefully with an attorney.
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