Considerations for both approaches to your I-9 process.
By Aleksandra Michailov
Are you looking to replace your error-prone I-9 paper process with an electronic system in 2013? Companies that are considering transitioning to electronic I-9s should be aware that there are significant issues related to legal liability, security, functionality, and cost. There are benefits and disadvantages to both approaches.
Some advantages of using electronic I-9 system:
• Electronic storage can result in more efficient and proper
completion of the Form I-9. The system instantly checks for errors and signals invalid data entry as the user types, ensuring valid data entry.
• An electronic system eliminates missed deadlines by automatically
alerting HR administrators about required signatures and re-verification. Employers are less likely to incur liability due to an inadvertent failure to update an employee’s Form I-9.
• Most systems have a built-in tickler system to re-verify expiring
information, like immigration work authorization, for instance.
• Audit risk exposure is reduced by automatically alerting HR
administrators to Form I-9s that can be purged, according to the three-year/one-year rule.
• Most electronic systems can automate audit trails of all required
actions and simplify Form I-9 self-auditing through easily-customized reports.
• Access to the database is available from any location and it
is searchable by both employer and immigrations and custom enforcement (ICE).
• Electronic systems often offer instructions in multiple languages.
With a paper-based Form I-9, the employer must provide a translator.
The disadvantages of using an electronic system:
• Organizations must take into considerations costs to set up an
electronic Form I-9 storage system. The costs typically include implementing the system, transition of legacy files, program maintenance, and technical requirements.
• An electronic system has data privacy risks inherent in collection
of personal documents. The burden is on the employer to properly vet their software. The deficiencies found in an organization’s software will be directly attributed to the organization and not to the providing vendor.
• Computer access is required and that might not be compatible
with small businesses or remote operations. All new hires need to be able to complete the form on a computer, which might create an issue if hiring large groups of employees at once.
• Electronic systems do not take care of all compliance problems
automatically. Employers need to remember to continue to follow ICE best practices, including continuous I-9 administrator training and annual I-9 audits (internal and external).
Some advantages of using paper storage:
• For small and medium employers, storing Forms I-9 on paper is
more cost effective and efficient. (However for larger employers—with 100 or more employees—storing I-9s on paper can be bulky, inefficient, and difficult to manage.)
• It can be easier to learn how and when the form was filled out.
• If revisions are needed, it is easier to annotate and explain
situations by writing explanatory text on paper Form I-9 compared to an electronic system.
• Paper storage is easy to lock up and secure, and it is easy to audit
The disadvantages of using paper storage:
• For larger employers—with 100 or more employees—storing I-9s
on paper can be bulky, inefficient, and difficult to manage.
• Paper files and employee identity documents, unlike software,
might be lost or misplaced
If your organization decides to take the plunge and move to electronic I-9 storage system, please keep in mind that any software must be used with continual compliance in mind. Particularly in view of United States Immigration and Customs Enforcement (ICE) auditors who are becoming well-versed in pointing out potentially non-compliant software features, HR executives should scrutinize their software options carefully. They can vet and demand more adaptations to meet the continuing changes in the industry that some vendors simply do not have the vested interest, time, or knowledge to meet. As the market for electronic Form I-9 software has matured, the shift to specialized software will be easier to implement.
DHS regulations require I-9s generated electronically to meet the following standards:
• The forms must be legible when seen on a computer screen or
when printed on paper.
• There are reasonable controls to ensure the accuracy and
reliability of the electronic generation or storage system.
• There is a system to be able to identify anyone who has created,
accessed, viewed, updated, or corrected an electronic Form I-9 and also to see what action was taken.
• The software must have an indexing system allowing for searches
by any field.
• There must be the ability to reproduce legible hardcopies.
• The software must not be subject to any agreement that would
limit or restrict access to and use of the electronic generation system by a government agency on the premises of the employer, recruiter or referrer for a fee (including personnel, hardware, software, files, indexes and software documentation).
No matter which system you pick, the most important advice for switching to electronic I-9s is that the burden is on the employer to properly vet their software. Any deficiencies found in an organization’s software will be directly attributed to the organization and not to the vendor.
In current climate of increased ICE inspections, it is simply not enough for employers, particularly large employers, to rely on a relaxed compliance approach. Employers should implement an industrial strength immigration compliance program, consisting of an I-9 audit, a compliance program audit, and anti-discrimination auditing.
Employers should also remember that electronic I-9s are acceptable only if they continue to follow ICE best practices, including annual I-9 administrator training, review of I-9s by a second I-9 administrator, and annual I-9 audits.
Aleksandra Michailov is an attorney with Capitol Immigration Law Group in Washington D.C., whose practice has been dedicated to employment-based immigration, with a focus on the Form I-9, E-Verify, and related immigration compliance issues.