By: Bruce Buchanan, Sebelist Buchanan Law

The immigration-related agencies’ positions on the pre-population of data in Section 1 of the I-9 form is everchanging. At about the time of our publication of the book, The I-9 and E-Verify Handbook, Bruce Buchanan and Greg Siskind, 2d ed. (2017), the USCIS altered its position again.

The USCIS added the following in I-9 Central, Section 1, Questions & Answers:
Question: Can Section 1 of Form I-9 be auto-populated by an electronic system that collects information during the on-boarding process for a new hire if the employee is required to verify that the information is correct and can make corrections or add information if necessary?


Answer: DHS regulations require that the employee completes Section 1 of Form I-9. Employers can offer employees electronic tools to facilitate the Section 1 completion process, as long as this regulatory requirement and the regulatory requirements for the electronic generation of Form I-9 continue to be met.

This answer is contrary to the position that USCIS articulated in the E-Verify newsletter, November 2016, which the book quoted as follows:
USCIS stated Section 1 of Form I-9 could not be pre-populated. Pre-population involves the electronic inclusion of data about the employee in Section 1 by Form I-9 software programs without the employee having to write the information in Section 1.

See Chapter 2, Question 2.12, p. 23-24.

Immigration and Customs Enforcement (ICE) and OSC (now renamed the Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice) have not changed their positions which were discussed on p. 24 of The I-9 and E-Verify Handbook. Thus, ICE holds no official position on the pre-population of Section 1 by electronic Form I-9 software programs. This is a change in past policy in which ICE stated pre-population could not be done by employers. On the other hand, in August 2013, the OSC stated that it discouraged the practice of pre-population because “it increases the likelihood of including inaccurate or outdated information.”

I invite anybody who has the book - The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379, to alert me of any substantive changes that have been made in employer immigration compliance since the publication of the book. As we know, immigration law is everchanging and I want to keep the book up to date. I would like to thank Dave Fowler of Worksite Compliance Services for pointing out the change related to pre-population.