ICE’s Official Guidelines for Electronic I-9 System Audits

In response to an electronic Forms I-9 provider, US Immigration and Customs (ICE) issued guidelines for maintaining an electronic I-9 system for employers.

In early October, ICE issued their official guidelines for assessing electronic Form I-9 systems in an audit. These guidelines tell Homeland Security Investigator (HSI) agents and auditors what Form I-9 information to gather from employers’ electronic systems – guidelines that also help HSI agents to determine I-9 related fines, based on electronic I-9 requirements.

Though ICE has been continually augmenting regulations for its two-year-old electronic I-9 system, storing Forms I-9 electronically is still an employer’s safest bet. Storing Forms I-9 electronically helps to minimize paperwork and paperwork errors; it also allows for easier management and incorporation of E-Verify, which saves time and prevents variances.

A New Framework

In an effort to streamline their I-9 audit procedures, ICE has created a new framework for assessing I-9 systems. If you’re sent a Notice of Inspection (NOI), these are the things you need to know:

1. Audit Trail

Full electronic I-9 compliance means employers must have an audit trail. ICE guidelines require an employer’s electronic system to make a secure and permanent record – and for this record to reflect the date of use, why it was used and what it was used for – when an electronic Form I-9 is created or changed. Since this is the number one investigative method for ICE, it should be an employer’s number one priority.

In order to show the audit trail, specific actions should be taken by an employer when creating and managing Form I-9. A thorough electronic I-9 system will record:

    • the creation of a form for an employee
    • personal information, employee testimony, electronic signatures and dates, any further documentation
    • any updated or altered information

Such a trail is needed so that ICE agents can determine whether an employer’s practices are in compliance with ICE regulations, and whether ICE must issue civil fines.

2. Software Provider & Operating Procedure

When an employer receives an NOI, ICE will ask for the name of the employer’s electronic I-9 system software provider. ICE needs this information so that the agents can gain a better understanding of how the system functions.

In an audit, the employer will have to provide a thorough explanation of their operating system. The employer should make ICE’s job as easy as possible; the employer’s chosen system should be simple and easy to use.

3. Indexing System

Indexing systems catalog employees by name and other attributes, which is helpful in the case of an ICE audit. Employers must make sure that their indexing systems have safeguards that can avoid duplication of employees or Forms I-9. Employers should steer away from systems that merge payroll, tax and employment verification with Forms I-9 – these different areas of information should be stored separately.

4. Electronic Signature

ICE’s regulations on electronic signatures are somewhat unclear. What is clear is that employers must develop a standard procedure for acquiring an employee’s electronic signature, and must guarantee that the signature on the Form I-9 is actually the employee’s. ICE will inspect electronic signatures to ensure that the “significance”– that the employee understands what he/she is signing – has been maintained.

5. Hardcopies

ICE regulations require that an employer’s operating system be able to produce hardcopies of electronic Forms I-9; the best systems will allow the employer to download a PDF version of electronic records.

6. System Demonstration

A system demonstration doesn’t seem like a necessity, but sometimes software vendors have a knack for misleading their customers. For a better user experience, some vendors have added fields, which are not on the original Form I-9; or they have moved fields around – i.e. fields from section 2 are in section 1. Such renderings can sometimes lead to accidental in compliance, and alter the meaning of the form.


While many employers are in favor of electronic I-9 systems – it reduces paperwork and is easily accessible – let us remember two cases. The first is the case of Abercrombie & Fitch, where the electronic I-9 system erased several employees’ records and the company was unable to produce them in reply to an NOI from ICE. The second is the case of UCSD Medical Center, where the electronic I-9 system prompted HR to ask for documents that were not required from naturalized citizens and permanent residents, leading to charges of document abuse and monetary fines.

Different electronic vendors have different programs – before entering into or storing Form I-9 electronically, the employer needs to do some due diligence to ensure the program follows compliance procedures mandated by ICE. It’s best to consult an immigration attorney when previewing an electronic system.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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