Improper Handling of Electronic I-9 Forms Could Become Another Costly Immigration Compliance Risk for Employers Under the Trump Administration

U.S. President Donald Trump has been unambiguous in his stance on combating illegal immigration, and employers are paying close attention. This administrationhas begun conducting workplace raids, and stakeholders expect an increase in audits of Form I-9, the document used to verify an employee's eligibility to work in the United States.

However, in the days following Trump's inauguration, voices in the immigration compliance space have increasingly warned about a vulnerability many employers may not yet be aware of: their I-9 form vendors.

I-9 Forms Go Digital

I-9 form compliance involves several variables, one of which is how the form is completed. Both employers and employees must complete specific sections of the form. Traditionally, an employer representative would sit down face-to-face with a new hire to collect and review the documents the employee uses toestablish identity and employment authorization, which may include some combination of government-issued IDs, passports, green cards, or similar documents.

But in recent years, parts of this process have become more electronic, partly due to the COVID-19 pandemic. In 2020, U.S. Immigration and Customs Enforcement (ICE)temporarily allowedemployers to review authorization documents remotely. Then, in 2023, ICEmade remote review a permanent option for E-Verify participants in good standing。

According to David Adams, a client manager at background screening service SafestHires (which does not offer its own I-9 product), electronic solutions to assist with completing I-9 forms and recordkeeping were already becoming more common well before the pandemic. These tools, offered by HR information system vendors, law firms, and other third parties, are marketed as simplifying a process that can be time-consuming for employers.

Adams and others interviewed by HR Dive said they became concerned after seeing electronic I-9 forms generated by multiple platforms that did not comply with federal regulations—opening the door to violations that the Trump administration is likely to uncover.

Two Areas of Concern

Adams said HR teams face two main areas of concern. The first is that an I-9 vendor's software may prefill certain sections of the I-9 form, such as the employee's biographical information.

According tojoint guidanceissued by ICE and the U.S. Department of Justice, employers using I-9 software programs must not prefill the I-9 form using employee information collected from external sources, such as a job application. They also must not fill out the form on behalf of the employee unless the employer is acting as a preparer or translator assisting the employee with Section 1, where the employee enters their information and attests.

The second area of concern involves using software programs to attach electronic signatures to paper I-9 forms. The issue is that using electronic signatures requires compliance with ahost of standardsset by the U.S. Department of Homeland Security (DHS) that differ from those for paper I-9 forms, which could effectively put employers in a state of noncompliance.

Adams said that while I-9 vendors are unlikely to intentionally release noncompliant products, it is not enough for a vendor to simply insist that its product is compliant. HR teams must ask the right questions and not assume compliance, he said; "You need to look at your own system."

Indeed, the additional compliance measures required for digital forms are numerous. For example,DHS regulationsrequire employers to maintain an "audit trail" for electronic I-9 forms—a record of actions taken on a particular form—said Chris Thomas, a partner at the law firm Holland & Hart. He added that even if vendors do maintain an audit trail, its quality may not be sufficient to meet DHS standards.

DHS regulations also stipulate that employers must implement an electronic record security plan that:

• Ensures only authorized personnel have access to electronic records.
• Provides backup and recovery of records to prevent information loss, such as during a power outage.
• Ensures employees are trained to minimize the risk of unauthorized or accidental alteration or deletion of electronic records.
• Ensures that whenever an electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is generated that includes the date of access, the identity of the individual who accessed the electronic record, and the specific action taken.

Employee attestations can also raise compliance issues. DHS requires that electronic systems used to capture attestations include a method capable of demonstrating that the employee has signed and read the attestation. The signature must be attached at the time of the transaction, and the system must create and preserve a record to verify the identity of the signer.

But Thomas said multiple electronic I-9 systems he has reviewed do not include such an attestation. This requirement can be partially met with a small checkbox that employees can tick to confirm they have read the attestation and entered their signature. "The law is clear that if the system doesn't have that, then in the eyes of DHS, there is no valid I-9 form," Thomas added. "Many vendors don't have this attestation."

Federal enforcement agencies have previously taken action against employers using noncompliant electronic I-9 systems. Adams noted that in 2010, ICEfined retailer Abercrombie & Fitch more than $1 million。

over technical deficiencies in its electronic I-9 verification system.Adams said similar enforcement actions under the Trump administration could prove costly for employers. On January 2,DHS published inflation-adjusted civil penalty amounts

"If your system is noncompliant, you will pay a hefty price," Adams said.

'Everyone Is in the Crosshairs'

Most management-side attorneys interviewed by HR Dive consider electronic I-9 compliance a concern for employers during the Trump administration. Thomas said he has spoken with ICE agents who confirmed the agency's intent to take enforcement action against employers with noncompliant electronic I-9 vendors.

ICE did not respond to multiple requests for comment on its enforcement plans regarding electronic I-9 compliance.

On the very first day of Trump's second term, several executive orders aimed at reducing illegal immigration were signed, including onedeclaring a national emergency at the U.S.-Mexico borderand another aimed atpreventing mass migration and resettlement. Another order, titled "Protecting the American People Against Invasion," directs DHS to "take all appropriate action to significantly increase the number of agents and officers available to perform immigration officer functions."

Thomas said that last order could be particularly significant given the limited number of agents available to conduct I-9 audits across ICE's 30 field offices for Homeland Security Investigations. He noted the agency has worked with field contractors to expedite large-scale audits and may set quotas for this purpose.

"They will go to great lengths to break the magnet of U.S. employment," Thomas said. "Everyone is in the crosshairs."

Doug Kauffman, a partner at Balch & Bingham, said that even if employees are authorized to work in the U.S., the risk of errors being found in an I-9 audit remains because the system can still be deemed noncompliant.

What to Do Now

Kauffman said HR teams must proactively ensure their vendors understand DHS regulations; "ICE will not let you off the hook easily."

Going a step further may also be worthwhile: "Employers should not assume their software solution is compliant," said Eileen Lohmann, a senior associate at BAL. "It is critical to independently review every electronic solution they use to ensure it meets the regulations. Any error on the I-9 form is always the employer's responsibility."

When helping employers choose among different I-9 vendor options, Kauffman said he "carefully reviews the regulations every time" because that is what ICE focuses on when evaluating employers. He also said he looks at what the vendor will do when a client faces an ICE audit, and what processes and procedures they have to ensure clients can provide ICE with the required materials within three business days—including the audit trail.

"If we can't provide those materials to ICE, that doesn't do us much good," Kauffman said.

Lohmann similarly said employers should consider how a vendor responds in an audit situation. She also advised employers toproactively conduct internal I-9 auditsto understand what ICE might find. This could involve sampling a portion of I-9 forms, with or without the assistance of outside counsel. "Even a smaller-scale review can allow employers to correct errors and reduce future exposure," Lohmann said.