The I-9 Squeeze: What Happens When An Employer Migrates to a Completely Electronic System?

Maria del Carmen Ramos
Maria del Carmen Ramos

It’s been almost four years since U.S. Immigration and Customs Enforcement (ICE) finalized the regulations for electronically generating and/or storing Form I-9 records. Since that time, more and more employers have migrated to electronic I-9 systems for a variety of reasons—as a way of reducing paperwork violations, managing their I-9 programs, and/or integrating E-verify.

At the same, after adopting an aggressive enforcement strategy, we have seen a rise in worksite inspections. Between 2009 and 2012, after the change in enforcement strategy, ICE conducted over 9,000 worksite inspections and assessed approximately $31.2 million in fines. In 2012 alone, ICE made 520 criminal arrests linked to worksite enforcement, including the detention of 240 owners, managers, supervisors, and HR employees, and served more than 3,000 Notices of Inspection.

Unfortunately for employers, the latitude in the discretion that agents receive has resulted in inconsistent application during the audit process. As background, there are 26 Special Agents in Charge (SAC) principal field offices throughout the U.S. with subordinate field offices throughout their areas of responsibility. The SAC offices are listed at this link:

Fortunately, for employers who have migrated to an electronic system, ICE has made an effort to standardize their protocols by creating a basic framework for auditing electronic I-9 systems. On October 2, 2012, ICE issued its first ever official Guidance on the Collection and Audit Trail Requirements for Electronically Generated Forms I-9. Accordingly, if an employer, who has migrated to a completely electronic system, is served with a Notice of Inspection (NOI), ICE will most likely ask them for the following:

  1.  Audit TrailGenerally, an audit trail is a record showing who has accessed a computer system and the actions performed within or on the computer system during a given period of time. Specifically, the regulations require that, whenever an electronic Form I-9 record is created, completed, dated, modified, altered or corrected, a secure and permanent record must be created that establishes the date accessed, who accessed it, and what action was taken. This is known as the audit trail. So why is this important? Basically, the audit trail is ICE’s road map. It is the only way that ICE can verify the integrity of the verification process and detect issues of altering or fraud. As such, the audit trail would reveal whether the Form was created and completed timely, who accessed the form, and track what changes were made. Without the audit trail, ICE would be blind and unable to determine whether the employer was in compliance with its Form I-9 obligations.
  2. Name of Software Provider and Operating ProceduresFirst, while this is not particularly hard to produce, an employer must be able to provide ICE with a good description of their electronic I-9 system in the event of an audit. Second, the employer is going to have to provide ICE with its internal business practices and protocols in connection with the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated I-9 forms. Employers should consider developing standard operating procedures (with the assistance of immigration counsel) that explain how the employer’s system complies with the employer’s legal obligations.
  3. Indexing SystemAn “indexing system” is a system that permits the identification and retrieval for viewing or reproducing relevant documents and records maintained in an electronic storage system. An employer is required to maintain an indexing system that would enable ICE to search for and retrieve I-9s and related documents by an employee’s name. Essentially, the system should identify how the electronic information in the Form I-9 is linked to each employee and documentation of the systems used to capture the electronic signature, including the identity and attestation of the individual electronically signing the Form I-9.
  4. Documentation of what the system used to capture the electronic signature and attestation of the employee signing the formWhen it comes to this particular requirement, what ICE is looking for is to make sure that the person named on the form is the one who actually signed the form. If signing the form simply involves checking a box, how could the employee fully appreciate that they were signing a federal form under the penalty of perjury.
  5. At least one printed electronically generated Form I-9The regulations specifically require that an electronic system be able to reproduce legible and readable copies of an employer’s completed and retained I-9 records. Did the system use the version of the form at the time it was created when it printed? Or did the system print the information on the most current version of the form even though the I-9record was created before that form was in existence? As with everything when dealing with government agencies, the devil is in the details.
  6. Access to the system for a demonstration ICE recommends that agents request access to the system for a demonstration so that the agent can get a basic understanding as to how the system operates.

In sum, in light of this ever evolving area, employers are advised to seek the advice of counsel before blindly navigating ICE’s requirements. Remember, to the extent there are flaws in your electronic I-9 system or your standard operating procedures, it is the employer that will have to answer to ICE and the third party vendor. Our firm is available to assist employers to ensure they are legally complying with the I-9 obligations.

For more information, please contact Maria del Carmen Ramos at 813.227.2252 or

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