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

U.S. President Donald Trump has made no secret of his plans to crack down on illegal immigration, and employers are paying close attention. The administration has alreadybegun conducting workplace raids, and stakeholders expect an increase in audits of I-9 forms, the documents used to verify that employees are eligible to work in the United States.

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

The digitization of the I-9 process

I-9 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, collect and review the employee'sdocuments proving identity and employment authorization, which may include some combination of government ID, passport, green card, or similar documents.

But in recent years, parts of the 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 documents remotely. Then, in 2023, ICEmade remote authorization a permanent option for E-Verify good-faith participants。

According to David Adams, an account manager at background screening firm SafestHires (which does not offer I-9 products itself), electronic solutions that assist with I-9 form completion and recordkeeping were already increasingly common before the pandemic. These tools, offered by HR information system vendors, law firms, and other third parties, are marketed as streamlining a process that can be time-consuming for employers.

Adams and others who spoke with HR Dive said they became concerned after seeing electronic I-9s generated by multiple platforms that did not comply with federal regulations—setting the stage for violations that the Trump administration could uncover.

Two main concerns

Adams said HR teams face two main areas of concern. First, I-9 vendor software may prefill certain sections of the I-9 form, such as the employee's personal information.

According tojoint guidanceissued by ICE and the U.S. Department of Justice, employers using I-9 software programs must not prefill I-9 forms with employee information collected from external sources, such as a worker's job application. Employers also must not complete the I-9 form on behalf of employees, unless they are assisting as a preparer or translator in completing Section 1, where employees enter their information and attest to it.

The second area of concern involves using software programs to attach electronic signatures of employees to paper I-9 forms. The issue is that using electronic signatures requires compliance with a set of U.S. Department of Homeland Security (DHS)standardsthat differ from those applicable to paper I-9s, which could leave employers effectively noncompliant.

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

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

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

• Ensure that only authorized personnel have access to electronic records.
• Provide backup and recovery of records to prevent information loss, such as during a power outage.
• Ensure that employees are trained to minimize the risk of unauthorized or accidental alteration or deletion of electronic records.
• Ensure that whenever an electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is created 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 to show 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 several electronic I-9 systems he has reviewed do not include such an attestation. The requirement can be partially satisfied by 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 DHS's view, the I-9 form simply doesn't exist," Thomas added. "Many vendors don't have that 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 Co. 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, raising the maximum fine for I-9 paperwork violations from $2,789 to $2,861 per violation.

"If the form is noncompliant, you're going to pay a hefty price," Adams said.

'Everyone is in the crosshairs'

Management-side lawyers who spoke with HR Dive largely agreed that electronic I-9 compliance is a concern for employers under the Trump administration. Thomas said he has spoken with ICE agents who confirmed the agency plans to take enforcement action against employers whose electronic I-9 vendors are noncompliant.

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

On his first day in his second term, Trump signed several executive orders aimed at reducing illegal immigration, including onedeclaring a national emergency at the U.S.-Mexico borderand another aimed atpreventing mass migration and resettlementAnother order, titled "Protecting the American People Against Invasion," directs DHS to "take all appropriate action to substantially increase the number of agents and officers carrying out immigration enforcement duties."

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 regional Homeland Security Investigations special agent-in-charge offices. He noted the agency has worked with field contractors to speed up large-scale audits and may set quotas for them.

"They're going to do everything they can to break the magnet of jobs in America," Thomas said. "Everyone is in the crosshairs."

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

What to do now

Kauffman said HR teams must be proactive in ensuring their vendors understand DHS regulations; "ICE is not going to let you off the hook easily."

Going a step further may be worthwhile: "Employers should not assume their software solutions are compliant," said Eileen Lohmann, a senior associate at BAL. "It's important to independently review every electronic solution they use to ensure it complies with regulations. Employers are always responsible for any errors on the I-9 form."

When helping employers evaluate different I-9 vendor proposals, Kauffman said he "looks at the regulations every time," because that is what ICE focuses on when assessing employers. He also looks at what vendors will do when a client faces an ICE audit, and how their processes and procedures ensure clients can provide ICE with required materials—including audit trails—within three business days.

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

Lohmann similarly advised employers to consider vendors' processes during an audit. She also recommended that employersproactively conduct internal I-9 auditsto understand what ICE might find. This could involve reviewing a sample of I-9 forms with or without the assistance of outside counsel. "Even a smaller-scale review allows employers to correct errors and reduce future exposure," Lohmann said.