Electronic I-9 Questions You Were Afraid to Ask

by Ann Cun

Over the years, I’ve heard some interesting stories from colleagues discussing the development of electronic software for I-9. Queries from many employers still reveal a lot of confusion about the role of the electronic Form I-9. As we embark on 2013, and being that we are the leading provider of electronic I-9 software and industry related news, our readers will certainly benefit from today’s article. Read on while we provide clarification on some of the more common issues encountered by employers about electronic I-9 software (and their vendors).

The Scanned I-9

Does a completed Form I-9, scanned as an image and saved in a portable document format (PDF), constitute an electronic I-9? The answer is no. Electronic I-9s were officially permitted by Congress in 2004 but regulations weren’t finalized until 2010. In essence, an electronic image of a completed Form I-9, by itself, would not be enough to qualify as an electronic I-9 according to regulations. The regulations require that electronic I-9s must meet “performance standards,” commonly used by the IRS and the SEC. The standards are many, which we’ve written about in the past. In addition, ICE has also released its own guidance on electronic I-9s. Thus, employers who are considering moving from paper to electronic I-9s must consider compliance with the federal regulations regarding electronic I-9s. You can read about one of the more infamous cases on electronic I-9 regulations here.

The Electronic Signature

Should electronic I-9 software provide a mechanism for an employee to electronically “sign” his/her name? Yes, absolutely. At minimum employees must undergo some form of an electronic signature process that documents the employee’s acknowledgement of the attestation (in Section 1) and records the time the signature is captured. Merely sending a link in an email to an employee, for example, absent any other method to capture a signature, is not sufficient.

The Experts

Who should develop the software, software engineers or legal experts? Any employer that has been hit with a penalty or civil fine will tell you that I-9 is no joke and employers should take I-9 compliance seriously. Ideally, a combination of software engineers and an experienced team of legal experts well-versed in I-9 compliance are the perfect match. The danger with relying on a development team sole comprised of software engineers is that they will be unfamiliar with the evolving regulations (and industry developments) and may over-emphasize automation, like in this particular case here.

Do As I Say, Not as I Do

Should the vendor utilize its own software to verify employment eligibility for its own workforce? Call me crazy but I would be very curious as to why an electronic I-9 vendor would not be using its own software.

Attorney Approved

How much weight should you give to a letter from an immigration attorney indicating that an electronic I-9 software is compliant with federal law? This would depend on some important factors including the reputation of the attorney, his/her experience with I-9 compliance (and not just immigration in general), how recent the “review” of the software was, the scope of the review of the software, and the features provided in the software, amongst other issues. For example, if the review occurred two years ago, significant developments may have transpired necessitating re-developments in the software. Also, did the reviewer conduct an actual test case or was a business case with screen shots provided for review? Employers should carefully consider these factors.

Originally published by LawLogix Group Inc Reprinted by permission.

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.