www.electronici9.com

Imagine playing in a high stakes poker game where every little mistake you make costs you thousands of dollars. You are allowed to fix the mistakes but the problem is that no one explains the rules about how to do it. Sound familiar? Welcome to the real life game of I-9 enforcement: one form, a multitude of ways to make mistakes, and ambiguous rules about how to fix those mistakes.

For years concerns have been raised about the need to clarify which I-9 violations are technical and substantive and how to mitigate the errors once made. Lacking guidance from USCIS and ICE, regional differences have emerged during worksite enforcement actions leaving even more confusion in the field. That could soon change.

On February 4, 2011 in a letter to the US Chamber of Commerce, USCIS announced that it intends to launch a new website called “I-9 Central” in the spring of 2011. The purpose of the website is to provide clear guidance on how to complete the Form I-9, although it is unknown at this point if the intention is to go beyond the instructions in the M-274 Handbook. Other features of “I-9 Central” reportedly will include written guidance delineating which errors are technical and which are substantive.

Of course it does no good to know what type of error the I-9 has if there is no guidance on how to correct it. Stakeholders will be pushing for clear rules on mitigation issues, such as who can correct Section 1 and under what circumstances, and what to do if Section 2 is not signed and dated and the original certifier is no longer employed. Although not specifically stating that these rules will be provided, the USCIS letter is a strong indicator that this information will be a feature in the new website.

USCIS also indicated that it is researching the feasibility of “smart” features on the I-9 such as drop-down boxes, helper text, and radio buttons, acknowledging these would help avoid a number of technical errors. While I’m sure we all appreciate the sentiment, it’s important to realize that USCIS budgetary issues will no doubt keep these improvements from becoming reality any time soon. Furthermore, while any modernization is applauded, these “smart” upgrades would only assist in completing the I-9 form and would most likely not guarantee a completely error-free form.

The best way to avoid mistakes altogether is to follow a two-step process:

  1. Take the time to review your existing I-9s, E-Verify records and overall procedures with experienced legal counsel to identify potential issues and develop a proactive approach to achieve compliance. Remember that unresolved I-9 issues are like ticking time-bombs, so it’s best to have an expert diffuse any potential disasters (which could cost you dearly in fines and negative publicity). 
 
  2. Start utilizing a state of the art electronic I-9 system, which can automate and streamline virtually every step of the I-9 process, including proper completion, electronic signing, and retention of the I-9 forms going forward. A well-designed electronic I-9 system will also communicate seamlessly with E-Verify, include various reporting options, and send automated reminders of deadlines via email.

Naturally, all electronic I-9 systems are not created equally, and so it’s important to carefully scrutinize your system of choice to ensure that it adheres to the final electronic I-9 regulations, the new M-274 guidance, and the strictest of security standards. For more information on my recommendations for electronic I-9 systems, please feel free to contact me here.


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