In April 2013, representatives from Immigration and Custom Enforcement’s (“ICE”) Homeland Security Investigation Worksite Enforcement Unit announced a critical change in policy regarding electronic I-9 software that now prohibits employers from pre-populating Section 1 of electronic Form I-9s, even if the employer also completes the preparer/translator certificate.

Section 1 of the Form I-9 is entitled “Employee Information and Attestation” and specifically requires that the employee sign and complete the section prior to the end of his or her first day of employment. Prior to the policy change, ICE had taken the position that employers could pre-populate Section 1 of electronic Form I-9s from information already provided by the employee, so long as the employee reviewed and signed the section, and the employer also completed the preparer/translator certificate located immediately below Section 1. This practice promoted efficiency in the on-boarding process as electronic I-9 software is often integrated with other HR systems, and eliminated the need for the employee to re-enter information already submitted to the employer.

In light of ICE’s new stance on the pre-population of Section 1, employers should be aware that use of software that pre-populates Section 1 is risky and could expose employers to liability in the event of an ICE-initiated I-9 audit. Employers should take steps now to ensure that their electronic I-9 software no longer pre-populates Section 1. Employers must now require employees to fill out Section 1 entirely on their own, unless a preparer or translator is needed for other reasons.