The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (say that 3 times!)has provided guidance on Form I-9 software programs that pre-populate Section 1 of the Form I-9 with data already entered into the software program. In our June 12 posting, we blogged that Immigration and Customs Enforcement (ICE) said that pre-populating Section 1 of the I-9 Form was prohibited. Now, the Department of Justice has weighed in and suggested that pre-populating Section 1 of the form could violate the anti-discrimination provisions of the Immigration and Nationality Act.
The DOJ discourages the use of pre-populating software because it increases the chance of including inaccurate or outdated information in Section 1 of the Form I-9, such as changes in legal names, addresses, or citizenship or immigration status. The outdated information, the DOJ theorized, could lead the employer to reject documents the employee presents to establish identity and work authorization, as required in Section 2 of the Form I-9. The outdated information could also lead to mismatches with government databases, for those employers who use E-Verify. Lastly, the DOJ theorized that employers who rely on pre-populated data in Section 1 of the Form I-9 may be more likely to overlook that an employee has limited English proficiency. As a result, the employer may fail to provide the employee with translation or interpreting assistance to ensure the accuracy of Section 1 and to assist the employee in understanding the documentary requirements in Section 2 of the form.
Employers who use software programs to complete the Form I-9 should deactivate any feature that pre-populates information into Section 1 of the form. Continuing to use the pre-population feature runs afoul of guidance from both ICE and the DOJ.