Whether to pre-populate Section 1 of the Form I-9 has become a hot topic because of the rising use of electronic I-9 software. Section 1, Employee Information and Verification, contains basic information about the employer, such as name, address, and date of birth. I-9 software makes it easy for the employer to complete Section 1 from existing information already in the system. But is it a good idea?

The Immigration and Nationality Act (“INA”) requires an employer to complete a Form I-9 for every employee hired after November 6, 1986. The regulations require the employee to complete Section 1. If the employee is unable to complete Section 1, another individual can assist him or her and complete the Preparer/Translator section of the form. The regulations require the Preparer/Translator to read the form to the employee and assist him or her in completing the form. Electronic I-9 software can prepopulate Section 1 for the employee who then can review and sign the I-9. The problem is that the employee is not physically completing Section 1 nor is the form being read to him or her by a Preparer/Translator.

Immigration Customs Enforcement (“ICE”) and U.S. Citizenship and Immigration Service (“USCIS”) have provided inconsistent statements. Earlier this year, ICE stated at an American Immigration Lawyers Association meeting that it deemed pre-populating Section 1 a violation of I-9 regulations. However, more recently, both ICE and USCIS stated that they have no official position regarding pre-population and advised employers to follow the regulations (which are silent on the issue). An official guidance or policy from either agency has yet to appear.

The Office of Special Counsel is the latest to weigh in. The OSC enforces the anti-discrimination provisions of the I-9 regulations. OSC Deputy Special Counsel Seema Nandra wrote that the discourages the pre-populating practice. First, the practice may pre-populate with inaccurate or outdated information, which could lead to mismatches in E-Verify or payroll records. Second, pre-populating may input an immigration or citizenship status that is no longer valid, causing the employer to reject valid documentation of work authorization. Finally, employees who are illiterate or not an English speaker will not get the chance to have the form translated or read to them, and the employee will be signing the documentation without understanding the full nature of the form. All of this could be lead to discrimination in the I-9 process. The OSC letter can be found here.

Until clear guidance is provided by ICE and USCIS on the issue, it is a best practice to have all employees complete Section 1 themselves, unless they are unable due to illiteracy, language barrier or disability. In these instances the regulatory process for a Preparer/Translator should be used.