OSC TAL on Pre-Population of the Electronic Form I-9: Making Life Easier or a Headache?

Contributed by Jacqueline Lentini McCullough

In a Technical Assistance Letter (TAL) dated August 20, 2013 from the Department of Justice’s (“DOJ”) Office of Special Counsel, Deputy Special Counsel Seema Nanda, discourages pre-population of employee information in Section 1 of the I-9 Form by electronic I-9 programs due to potential discrimination concerns. Similarly, the Immigration and Customs Enforcement (“ICE”) has indicated that pre-population of Section 1 is impermissible.

Pursuant to federal law, a person or entity that hires, recruits or refers an individual for employment must verify the identity and employment authorization of each person hired, recruited or referred. The form designated for that purpose is the form I-9. The form I-9 specifies that Section 1 be completed by the employee. If an individual is unable to complete the form I-9 or needs it translated, someone may assist him or her in the preparation. A preparer or translator must read the form I-9 to the individual, assist him/her in completing Section 1 and have the individual sign or mark the form I-9 by a handwritten or an electronic signature attached at the time of the transaction.

The Office of Special Counsel (“OSC”) oversees Immigration Related Unfair Employment Practices. As such, the OSC discourages the practice of an employer pre-populating Section 1 with previously obtained employee information. This practice increases the likelihood of including inaccurate or outdated information in Section 1. Inaccurate or outdated information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes. Furthermore, if an employer uses outdated or inaccurate information to submit an E-Verify query, a mismatch may result because the status or name in government databases conflicts with the employer’s outdated information.

Moreover, from the perspective of the anti-discrimination provision, employers relying on previously gathered employee information may be more likely to overlook that a particular employee has limited English proficiency (“LEP”) because Section 1 has been pre-populated by the employer. As a result, the employer may fail to provide the employee with translation or interpretation assistance in order to ensure the accuracy of Section 1, thereby assisting the employee’s understanding of the request for documents relating to Section 2.

The OSC is now the second governmental agency after ICE to notify the public to avoid pre-population of Section 1 of Form I-9.