A national staffing company was recently fined $227,000 in civil fines for improperly completing the Forms I-9 for its remote hires. In this case, while the hiring manager did review the original documentation, copies of documents were then sent to a payroll administrator who completed Section 2 of the Form I-9. This process did not comply with Form I-9 procedural requirements as the individual completing Section 2 did not view the original documents, nor was the review performed in the presence of the employee. Remote employees present a unique challenge to employer as they attempt to comply with Employment Eligibility Verification requirements.
The Form I-9 Process (In Brief)
All employers are required to verify the identity and employment authorization of every new employee by completing the Form I-9 within 3 days of their first day of work for pay.
First, The employee completes their portion of the Form I-9 (Section 1) any time after they accept their offer of employment, but no later than their first day of work for pay.
Next, the employee presents the employer’s representative (HR, a manager, a co-worker, the manager of the coffee shop next door- really anyone that the employer has asked to perform this function on their behalf, except a notary in California) with unexpired original documents they’ve chosen from the “List of Acceptable Documents” included with the Form I-9 to present to prove identity and work authorization .
Finally, the employer’s representative reviews these original documents, with the employee physically present, enters the document information in the spaces provided, and completes the certification section of the Form I-9 certifying, under penalty of perjury, that they have reviewed the original documents and that they reasonably appear to relate to the employee and are valid, and that to the best of their knowledge the employee is work authorized.
So how can an employer meet the requirement to view original documents with the employee physically present when the employee works in a home office in a remote location with no other co-workers?
Don’t Look to Your Smartphone for Answers: Immigration and Customs Enforcement ( ICE) has been steadfast in their opinion that the use of virtual presence to review documents is not compliant with Form I-9 rules, therefore the use of Facetime or Skype or similar app by an employer to review the documents with the employee “virtually present” is not permitted.
Do Look Within Your New Employee’s Community: While, technically, an employer could designate the employee’s significant other as their “authorized representative” to complete the required document review and certification, it is best to locate someone who does not benefit from the employment of your employee. You can look to their local community for good options, their bank manager, or the supervisor at the local office supply store.
Do Consider Contacting a Notary, Provided Your Employee is Not in California: USCIS’s Handbook for Employers suggests that employers may use a notary or other Authorized Representative to assist with completion of Form I-9. Essentially, an employer can designate anyone to complete the document review and complete the certification. However, employers generally prefer a consistent and reliable solution. Notaries are broadly available nationwide, and association directories make it easy to locate and identify them; therefore, even though they are simply performing a service as a company’s Authorized Representative and not a notary, they are often the first choice for employers.
Employers of remote employees in California, however, must find another alternative to serve as authorized representative, as the State of California determined in 2014 the Form I-9 is an "Immigration Form" and therefore in accordance with their existing rules, Notaries, who are not registered Immigration Consultants, may not complete the Form I-9 on behalf of an employer, even when not acting in their capacity as a notary.
Provide Some Guidance To Individuals Acting As Your Authorized Representative: It is notoriously easy to make a mistake on the Form I-9 and when you are relying on someone who you have not trained yourself, it is even harder to ensure the Form will be completed in a compliant manner. We recommend you provide some guidance to these individuals, and be sure to review the Form closely before filing it away so that any corrections can be addressed in a timely manner.