If you are an employer using private sector software products to electronically complete, modify, or retain Form I-9s, you should be familiar with U.S Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER) and U.S. Immigration and Customs Enforcement, Homeland Security Investigations (HSI) requirements for avoiding unlawful discrimination and other Form I-9 violations.

Electronic advances in Form I-9 compliance are an employer convenience. Nonetheless, it is important to keep in mind that using a Form I-9 software program does not guarantee compliance with federal law. Employers using such programs to electronically complete and retain the Form I-9 or participate in E-Verify, remain responsible for ensuring the software program’s compliance with:

• Form I-9 legal requirements and HSI guidance.
• E-Verify requirements and U.S. Citizenship and Immigration Services (USCIS) guidance; and
• Prohibitions against unfair employment practices, enforced by the IER.

Under federal law, all U.S. employers must complete and retain a Form I-9 for each person they hire for employment in the United States.[i]

E-Verify is a USCIS provided voluntary web-based system that compares information from a Form I-9 to government records to electronically confirm an employee’s authorization to work in the United States.[ii]

Below are a few important reminders for those employers using third-party software programs for Form I-9 compliance. Key compliance requirements for administering the Form I-9 remain unchanged when using a software program. These requirements include the following:

• Making sure that anyone who completes the Form I-9 has access to the most current version(s) of the Form I-9, including Instructions and Lists of Acceptable Documents (edition date 08/01/23)
• The employee must complete Section 1 before the employer completes Section 2.
• Employees with only one name must be allowed to enter their name in the last name field and enter “Unknown” in the first name field.

A major compliance requirement for accountability in completing, modifying, maintaining and retaining Form I-9 using a software program includes:

• Making sure the program follows all electronic Form I-9 requirements relating to the integrity, accuracy, and reliability of the system; security and documentation; indexing; electronic signatures; retention; audit trails; location, retrieval, reading and reproduction abilities; as well as the ability to provide Form I-9 summary files (such as a spreadsheet) containing all the information fields on electronically stored Forms I-9 requested by an inspecting agency.[iii]

Employers participating in E-Verify using customized software to connect to the E-Verify system, must ensure the program complies with the following E-Verify requirements:

• Providing prospective and newly hired employees with notice that the employer uses E-Verify consistent with applicable E-Verify requirements.
• Providing Further Action Notices and Referral Date Confirmation letters in both English and relevant translated versions to employees with limited English proficiency.

For more information, including a full listing of HSI/IER compliance recommendations, review the  on the use of Form I-9 software programs.

[i] Employers can find a free, updated, and fillable Form I-9 at www.uscis.gov/i-9.

[ii] Employers enrolled in E-Verify should be familiar with all E-Verify obligations found in the E-Verify Memorandum of Understanding and E-Verify guidance.

[iii] Compliance requirements under 8 C.F.R. § 274a.2(e) – (i).