Agency will no longer prohibit employers from pre-filling section 1 of Form I-9.

In a recent unexpected and complete reversal of previous guidance, senior U.S. Immigration and Customs Enforcement (ICE) officials with responsibility for Form I-9 enforcement informed members of the American Immigration Lawyers Association (AILA) and others that earlier statements prohibiting the pre-filling of section 1 of Form I-9 no longer reflect the agency's position and that ICE takes no official position with respect to pre-filling section 1 of Form I-9. Employers are instructed simply to follow the regulations. This issue is of particular relevance to employers that use electronic Form I-9 systems that are linked to electronic payroll or on-boarding platforms.[1]

Initially in May 2013, and then on other occasions, senior officials from ICE stated that employers should not pre-fill parts of section 1 of Form I-9. Prior to that statement, employers did not face sanctions for pre-filling section 1 of Form I-9, provided they also completed the "preparer/translator" sub-section.

What This Means for Your Business

While it now appears that there is no issue when employers accurately pre-fill section 1 of Form I-9, a conservative approach would be for those same employers to complete the section 1 "preparer/translator" sub-section as well. The relevant regulations and published agency guidance are silent on the issue of pre-filling section 1. In addition, ICE's prior position requiring employers that pre-fill section 1 to also complete the "preparer/translator" section is not clearly supported by the regulations. Nonetheless, in light of the shifting agency positions in this enforcement area, employers are advised to take a conservative approach. For additional instructions on completing Form I-9, a link to the U.S. Citizenship and Immigration Services' Form I-9 Handbook for Employers can be found at www.morganlewis.com/immigration.