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

U.S. President Donald Trump has been unambiguous in his stance on cracking down on illegal immigration, and employers have taken notice. The administration has alreadybegun conducting workplace raids, and stakeholders expect an increase in audits of I-9 forms, which are used to verify whether employees are authorized to work in the U.S.

However, in the days following Trump's inauguration, voices in the immigration compliance space have increasingly focused on a vulnerability many employers may not yet be aware of: their I-9 form service providers.

The shift toward electronic I-9 forms

I-9 form compliance involves multiple variables, one of which is how the form is completed. Both employers and employees must complete specific sections of the form. Traditionally, employer representatives have had to meet new employees in person to collect and verify theirdocuments proving identity and work 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 increasingly electronic, in part thanks to the COVID-19 pandemic. In 2020, U.S. Immigration and Customs Enforcement (ICE)temporarily allowedemployers to remotely verify authorization documents. Then, in 2023, ICEmade remote authorization a permanent option for E-Verify participants in good standing。

According to David Adams, an account manager at background screening provider SafestHires (which does not offer its own I-9 form product), electronic solutions assisting with I-9 form completion and recordkeeping were already becoming common well before the pandemic. These tools, offered by HR information system vendors, law firms, and other third parties, are marketed as streamlining a process that is time-consuming for employers.

Adams and others interviewed by HR Dive said they are concerned after seeing electronic I-9 forms generated by multiple platforms that do not comply with federal regulations—creating hidden risks for violations that the Trump administration could uncover.

The issue involves two aspects

Adams said HR teams face two major concerns. First, I-9 form vendor software may prefill certain sections of the I-9 form, such as employees' biographical information.

According tojoint guidanceissued by ICE and the U.S. Department of Justice, employers using I-9 form software programs must not prefill I-9 forms with information obtained from external sources, such as employee job applications. Unless the employer acts as a preparer or translator to assist the employee in completing Section 1 of the form (where the employee enters information and attests to it), they also must not fill out the I-9 form on behalf of the employee.

Second, some paper I-9 forms have electronic signatures attached to them through software programs. The issue is that using electronic signatures requires compliance with a set ofseparate standardsestablished by the U.S. Department of Homeland Security (DHS), which differ from the standards applicable to paper I-9 forms, potentially leaving employers effectively out of compliance.

Adams noted that while I-9 vendors are unlikely to intentionally release noncompliant products, it is not enough to rely on a vendor's claim that its product is compliant. HR teams must ask the right questions and not assume compliance—"You need to look at your own system."

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

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

• Ensure that only authorized personnel can access electronic records.
• Provide backup and recovery of records to prevent information loss, such as during power outages.
• 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 generated that identifies the date of access, the individual who accessed the electronic record, and the specific action taken.

Employees' attestation statements 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 verifying the identity of the signer.

But Thomas said multiple electronic I-9 systems he has reviewed do not include such an attestation. This requirement can be partially satisfied by a small checkbox the employee can tick to confirm they have read the attestation and entered their signature. "The law is clear that if the system does not have this feature, then in the eyes of DHS, the I-9 form does not exist at all," Thomas added. "Many vendors' systems lack this attestation feature."

Federal enforcement agencies have previously taken action against employers using noncompliant electronic I-9 form systems. Adams mentioned that in 2010, ICEfined retailer Abercrombie & Fitch more than $1 million。

over technical deficiencies in its electronic I-9 verification system. Adams said similar enforcement action by the Trump administration would be costly for employers. On January 2,DHS published inflation-adjusted civil penalty amounts, with the maximum fine for I-9 form paperwork violations rising from $2,789 to $2,861 per violation.

"If your system is noncompliant, you will pay a high price," Adams said.

"Everyone is in the spotlight"

Most management-side lawyers interviewed by HR Dive believe that under the Trump administration, electronic I-9 form compliance is a major concern for employers. Thomas said he has spoken with ICE agents who confirmed the agency plans to take enforcement action against employers whose electronic I-9 form vendors are noncompliant.

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

On the first day of Trump's second term alone, multiple executive orders aimed at reducing illegal immigration were signed, including onedeclaring a national emergency at the U.S.-Mexico borderand another aimed atpreventing mass migration and resettlement. Another executive order, titled "Protecting the American People Against Invasion," directs DHS to "take all appropriate action to significantly increase the number of agents and officers available to perform immigration officer duties."

Thomas noted that the latter order could be particularly significant given the limited number of ICE agents available to conduct I-9 audits across the 30 Special Agent in Charge offices for Homeland Security Investigations. He said the agency has worked with field contractors to accelerate large-scale audits and may set quotas for this purpose.

"They will do everything they can to break America's employment magnet," Thomas said. "Everyone is in the spotlight."

Doug Kauffman, a partner at Balch & Bingham law firm, said that even if employees are authorized to work in the U.S., the risk of errors being found in I-9 audits remains because the system can still be deemed noncompliant.

Steps to take now

Kauffman said HR teams must be proactive and ensure their vendors understand DHS regulations; "ICE will not let you off easily."

Going a step further may also be worthwhile: "Employers should not assume their software solutions are compliant," said Eileen Lohmann, a senior attorney at BAL law firm. "Independently reviewing every electronic solution used to ensure it complies with regulations is critical. Responsibility for any error on an I-9 form always rests with the employer."

When helping employers choose among different I-9 vendor options, Kauffman said he "looks at the regulations every time" because that is what ICE focuses on when evaluating employers. He also said he looks at what the vendor will do when a client faces an ICE audit, and whether its processes and procedures can ensure the client provides ICE with required materials—including the audit trail—within three business days.

"If we cannot provide those materials to ICE, then it is not of much use to us," Kauffman said.

Lohmann similarly said employers should consider how vendors respond when an audit occurs. She also recommended that employersproactively conduct internal I-9 auditsto understand what ICE might find. This could involve sampling a portion of I-9 forms, with or without the assistance of outside counsel. "Even a smaller-scale review can allow employers to correct errors and reduce future exposure," Lohmann said.