A growing trend in I-9 compliance is the use of electronic software to manage I-9 and E-Verify compliance responsibilities. This shift towards electronic solutions brings along some significant challenges due to the rigorous legal requirements, embedded in the immigration regulations, that govern the use of electronic software for the I-9 compliance process.
Electronic storage is a fairly new development, first authorized in 2004. By 2010, U.S. Department of Homeland Security (DHS) published regulations establishing a very demanding compliance framework specifically for electronic storage and compliance systems. It essentially mandated the following controls and systems, which are discussed in more detail in the M-274, Handbook for Employers:
- Reasonable controls to ensure the integrity, accuracy and reliability of the electronic generation or storage system;
- Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used;
- An inspection and quality assurance program evidenced by regular evaluations of the electronic generation or storage system, including periodic checks of the electronically stored Form I-9, including the electronic signature, if used;
- In the case of electronically retained Forms I-9, a retrieval system that includes an indexing system that permits the identification and retrieval for viewing or reproducing relevant documents and records maintained in an electronic storage system.
- The ability to reproduce legible and readable hardcopies.
The above requirements are rigorous and choosing the right software or vendor to handle electronic compliance can be a formidable task.
The Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) routinely issues Notice of Inspections (NOIs) that request employers to provide all available information in electronic format. NOIs typically request the name of software being utilized and copies of internal business practices/protocols related to the use of such software. HSI is able to discover deficiencies with an employer’s electronic I-9 compliance system, which can result in significant fines. A form I-9 that involves a failure of electronic compliance may be invalidated, leading to a fine amount between $110 and $1,100 per form. A vendor and its software products must, therefore, be evaluated based on a number of factors to minimize risk exposure, including but not limited to:
- Accessibility of electronic information, including whether such records are legible, readily producible to the government, and indexable (i.e., in the form of electronic summary, spreadsheet or report);
- The availability of audit trails created by the software, relating to the creation, completion, update, modification and alteration of I-9 forms;
- Security of its database, including access to authorized personnel, password protection, backup and data loss measures, and low risk of alteration of the data;
- The ability to document the employer’s business processes relating to the creation, modification and authenticity of the forms I-9 in its database; and
- Confirmation of electronic signature at the time of each transaction.
Other factors include: the vendor’s corporate capacity and experience; positive references; customer service; cost and efficiency; ease of migrating existing paper I-9s to the electronic system; tracking and reporting features; quality control features that ensure proper completion of forms; user friendly auditing features; I-9 purging functionality; identity theft prevention systems; integration with existing software, E-Verify, state I-9 laws or other types of state/federal laws; access to outside counsel; sensitivity to federal contractor issues; and efficiency and ease of utilizing software.
As briefly summarized above, there are a number of inquiries that should be made to the I-9 software vendor. Immigration counsel, equipped with knowledge of the applicable I-9 laws and experience navigating the relevant regulations, can help an employer to come up with the best questions for electronic software vendors and to evaluate the vendor’s compliance. Therefore, employers should consider the advantages of obtaining advice from immigration counsel in evaluating whether electronic employment verification is appropriate and which software is the best fit.