By: Bruce Buchanan, Sebelist Buchanan Law

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In the most recent E-Verify Connection, Number 33, released in November 2016, the United States Citizenship and Immigration Services (USCIS) has re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.

What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.

The E-Verify Connection raised and answered the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? Answer: “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.”

Agencies have differed on Pre-population of Section 1 Data

Three different agencies have taken positions on whether an employer can pre-populate portions of section 1 of the I-9 form and provided differing views.

USCIS

USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”

However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Then, at a later date, the USCIS stated it was not taking a position on the issue.

OSC

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) said in a Technical Assistance Letter (TAL), dated August 20, 2013, it discouraged the practice of pre-population because it "increases the likelihood of including inaccurate or outdated information.... (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes.“ Additionally, the OSC noted that pre-populating section 1 may be a problem if the new hire was not proficient in English.

ICE

Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section. In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE changed its position to it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.

Why is the Issue of Pre-Population Important?

In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.

Some Section 2 Fields Can Be Pre-Populated
In this same E-Verify Connection, the USCIS stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.

Conclusion

This new guidance is just another example of the perils of the I-9 form and the need for employers to conduct internal I-9 audits under the supervision of an immigration compliance attorney.