Everything is digital. Even our law firm has been paperless for 20 years! Technology allows for efficient and smooth experiences...most of the time.
With all of their benefits, software solutions can have pitfalls. Our clients, U.S. Employers, often contract with software vendors for all-in-one products to make recruitment, onboarding, and retention processes a breeze. While we are all for anything that makes life easier for our clients, it's important to remember software tools are not always created and maintained with the aim of ensuring compliance with federal regulations.
You cannot outsource liability to your software vendor
Under the Immigration Reform and Control Act, employers are required to complete and retain I-9s for all active employees and a subset of terminated employees. The I-9s must be completed and signed per DHS (Department of Homeland Security) rules. How they are retained must also follow these rules. While DHS expressly authorizes employers to use "any commercial computer program or automated data processing system that complies with these standards," to complete their I-9s, those same programs/systems create liability for employers.
Employers cannot rely on those companies to adhere to regulations set forth in 8 CFR 274a.2(e), (f), (g), (h) and (i). It is up to you (the employer) and your counsel to ensure you are compliant in the case of an audit. Issues we've seen over the years with I-9 systems include:
It encourages or causes your new hires to complete the I-9 early. An early completed Section 1 could appear to be discriminatory.
It prevents employers from reverifying timely (not having fields or capabilities to get back into the I-9 when an update is needed).
It limits text in fields, such as issuing authority, where free form is needed.
It does not track changes made to the I-9 - who and when changes were made. Audit logs are required under regulation.
The I-9 record isn't maintained together. It holds Section 1 and documents in personnel files and Section 2 and E-Verify in another file
Convoluted back-end storage means I-9s cannot be reproduced for ICE inspection within 3 days because retrieving each I-9 requires several clicks and download, file combination, etc.
It allows typed signatures without adherence to I-9 Electronic Signature rule.
The system separates or integrates E-Verify such that the E-Verify case results are not clearly available and retained with the I-9.
5 Considerations Around Electronic I-9 Generation and Retention
Over the years, we have played in sandboxes of many I-9 software systems, and, while we do not prefer one over another, we do have some quick tips to consider:
Write it down, understand it, be able to explain it. Document business processes for creation, generation, retention, modification, maintenance of I-9s
Have a regular review of the system and regulations. Audit the system regularly with I.T., trained I-9 Administrators (users), and Compliance Officers to ensure the system continues to be compliant.
Train, train, and more training. Make sure the team is receiving training from your vendor AND outside experts on what the system should be doing for you.
Remember your data security responsibilities. Digitizing records is freeing, but creates new opportunity for information leaks. DHS requires employers to create and identify reasonable controls put in place to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed and/or retained I-9.
Have a system for ALL I-9s - past, present, and future. If you are moving to an electronic system, identify how you will maintain your paper I-9s - simply digitizing them is not enough. Those ALSO need to be maintained per DHS regulations under 8 CFR 274a.
There are obviously way more than 5 considerations Employers should take in when moving their I-9 system digital, but this is a short list to mull over. It may seem at first glance that this article is anti-technology, but it is actually the opposite! I'm hoping to encourage the Employers to approach implementation cautiously and visit and revisit the compliance measures put in place before rushing to partner with any specific software vendor.
Danielle Atchison
Business Immigration Lawyer
The information on this blog post/website is for general information purposes only, it is not legal advice applicable to a specific situation. Viewing it does not create an attorney-client relationship.
