Electronic verification continues to grow in popularity, both in private electronic I-9 systems and the government’s E-Verify software system. My prediction is that within 5 years E-Verify will be required of all employers, and many of the private electronic I-9 systems are built to flow into E-Verify very smoothly. Employers have to understand that there is no true electronic I-9 allowed under current law; rather we have the recent government fillable I-9 form (often called a SMART I-9) which must still be printed out and signed in wet ink as well private I-9 systems which must be printable exactly like a paper I-9. If I-9s are to be retained electronically, the employer must follow the regulatory standards for electronic retention of I-9s.
Basically, 3 worlds now exist: E-Verify users, private electronic form users, and paper users. The new form creates a 4th group – fillable form users. Now we have 2 different government I-9 forms: the fillable form with drop down menus and the same old printed paper form. Instead of creating a standardized data entry form for employers we now have confusion. The new fillable form creates material changes to the verification laws and bypasses the APA requirements of rule- making. Smaller firms using paper I-9s have different instructions and lists of acceptable documents from larger firms which may choose to use the fillable I-9 form. For example, the fillable form has an incomplete employment authorization list in content and instructions, and the “additional information” field is confusing.
So what should an employer do? We do think E-Verify is going to be the law of the land so it is best to go ahead and use it now regardless of size. The benefits include minimizing the acceptance of fraudulent documents and showing evidence of an intent to develop a culture of compliance. The detriments include a smaller number of applicants, Big Brother having a watchful eye on how you administer E-Verify, data mining the documents you accept, and referring cases over to ICE and OSC for audit and investigation (e.g. a large number of List A documents are accepted which may spur an OSC audit for treating non-citizens differently).
However, which is worse: having to work harder to locate and verify legally authorized workers (by using E-Verify) or losing half your workforce from an ICE audit after paying a sizable fine (by not using E-Verify)? Yes, the employer is between a rock and a hard place, but with a plan and training sculpted as a good risk management policy, and with knowledgeable attorneys available to help when needed, employers can weather the storm and the confusion which is equally faced by all.
