ICE (Again) Changes Its Position on Pre-Population of Section 1 of Form I-9

An important issue for many employers that use electronic I-9 systems is the pre-population of employee information in Section 1 of the I-9 form by electronic I-9 programs. Form I-9, Employment Eligibility Verification, is the form that must be completed by all employers to verify the employment eligibility of every new hire. Electronic I-9 systems are often integrated with other HR systems and seek to streamline the hiring process by pre-populating employee information in Section 1 from information in the employer’s on-boarding intake program.

In April 2013, the American Immigration Lawyers Association (AILA), after meeting with officials representing the Worksite Enforcement Unit of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) division, ascertained that pre-population of Section 1 is not permissible. ICE officials also stated that this position applies irrespective of whether the preparer/translator section is completed and regardless of whether the individual employee provided the original information that is pre-populated. AILA reported further that the agency’s policy on this issue is applicable to an employer’s existing and future electronic I-9s.

According to AILA, this represented quite a significant change in the agency’s position on this issue. Based on ICE’s statements, AILA warned that employers should be aware that an electronic I-9 program that involves pre-population of employee information in Section 1 “carries significant legal risk.”

However, in an update to the above statements made by ICE to AILA earlier this year, ICE HSI Worksite Enforcement representatives recently announced that the agency now has no position on pre-population of Section 1 of Form I-9 by electronic I-9 programs. This appears to modify ICE’s earlier statement to the effect that pre-population of Section 1 by electronic I-9 programs is always prohibited.

Ogletree Deakins is monitoring developments and will provide updates and further clarification as more information regarding ICE’s recent statements and the impact on employers and electronic I-9 programs becomes available.