The Department of Justice (DOJ) has issued a new Employer Fact Sheet alerting employers about avoiding unlawful discrimination and other Form I-9 violations when using commercial or proprietary programs to electronically complete I-9s and participate in E-Verify. It is a comprehensive, though not exhaustive, explanation.

DOJ states:

  • Ensure the software program allows employers and employees to follow I-9 requirements:
    • Are all the forms and instructions current?
    • Can fields be left blank where permitted?
    • Does the system allow employees to enter only one name and enter “unknown” in the other?
    • Does the employer certification in Section 2 include the title and first and last name of the person who examined the documents as well as the employer’s business name and physical address?
  • Ensure the system fulfills all requirements for Form I-9 accountability and reliability for completing, modifying, and retaining Forms I-9:
    • Can employees, employers, and preparers/translators make and record corrections to Section 1 and Section 2?
    • Does the program uniquely identify each person who accesses, corrects, or changes a Form I-9?
  • For those who use a software program to complete E-Verify, ensure all E-Verify requirements are followed:
    • Does the system display all E-Verify notices?
    • Does the system use current versions of E-Verify Tentative Nonconfirmation notices?
    • Does the system allow the employer to delay creating E-Verify cases when the rules allow?

According to the DOJ, employers should not automatically pre-populate the Form I-9 with employee information derived from information the employer has accessed externally, among other things. DOJ’s Employer Fact Sheet provides an important reminder to employers to be cautious about software programs that claim government endorsement or do not provide technical assistance and support.

Evaluating commercially available or proprietary software used for completing Form I-9 and E-Verify processes can present many traps and mistakes made “by the software” that can lead to technical and substantive penalties in a government audit.

If utilizing electronic software for I-9 completion, employers should ensure the software complies with electronic signature requirements, which requires the system:

  • Allows individuals to acknowledge they read the attestation;
  • Attaches the electronic signature to an electronically completed Form I-9;
  • Affixes the electronic signature at the time of the transaction;
  • Creates and preserves a record verifying the identity of the person producing the signature;
  • Upon the employee’s request, provides a printed confirmation of the transaction; and
  • Includes a method to acknowledge you have attested to the required information in Section 2.

If Form I-9 is filled out on a computer without the use of an electronic software program that complies with the above signature requirements, the Form I-9 must be manually signed.

Moreover, the system must comply with retention requirements that ensures:

  • Only authorized personnel have access to electronic records;
  • You have a backup plan to recover records to protect against information loss;
  • Authorized personnel are trained to minimize the risk of wrongfully or accidentally altering or erasing electronic records; and
  • The system creates a secure and permanent record when an individual creates, completes, updates, modifies, alters, or corrects an electronic file. This record should include the date of access, the identity of the individual who accessed the electronic record, and the particular action(s) they took.

It is critical that employers are cautious regarding the separate requirements for each E-Verify and I-9. E-Verify electronically compares information entered on Form I-9; however, there are important differences between Form I-9 and E-Verify requirements, including:

  • Form I-9 is mandatory, while E-Verify may be voluntary for most employers;
  • Form I-9 does not require a Social Security Number, while E-Verify requires it;
  • Form I-9 does not require a photo of List B documents, while E-Verify requires a photo of them; and
  • Form I-9 must be used for employment authorization reverification, while E-Verify may not be used to reverify employment authorization.

Jackson Lewis attorneys are available to assist in evaluating software products, training staff regarding Form I-9 and E-Verify requirements, and assisting with self-audits to ensure compliance.