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USCIS, OSC and DHS on its E-Verify Connection have issued guidance stating that section 1 cannot be pre-populated during the on-boarding process of a new hire.  This is true even if the employee reviews the entries and signs the section in affirmation of the entries.

OSC issued similar guidance in a Technical Assistance Letter (TAL).

However, an employer can pre-populate certain fields in Section 2 such as: employer’s business or organization name, employer’s business or organization address (street number and name), city or town, state, and zip code.

Employers must engage in due diligence when selecting and using electronic I-9 vendors. If you choose to use a software solution, it is best to use specialized compliance programs that do not pre-populate section 1.

However, the instructions for the “smart” Form I-9 provide that employers and employees may choose to complete the form on paper, using a computer or a combination of both.   Thus, an employer could have an employee complete section 1 on the computer and then print that page and sign it.  This would be different than pre-population which is considered a substantive violation and can subject an employer to fines.

Our on-going recommendation to employers is to stay vigilant and educated on I-9 issues and work closely with an experienced immigration compliance counsel.