WORKPLACE LAW – I9 Compliance with Remote Workers

Question: How do I validate documents submitted by remote workers to comply with the Form I-9 requirements? Can I review the documents electronically or verify them via Skype or FaceTime?

Answer: With the current surge in immigration enforcement in the U.S., many employers are rightfully concerned about I-9 audits and compliance. Unfortunately, there are no exceptions to the requirement for employers to inspect and verify, in person, the authenticity of employment eligibility documents presented by an employee pursuant to USCIS Form I-9.

Within three business days of the date employment begins, the employee must present one or more of the qualifying authorization documents from the List of Acceptable Documents on the Form I-9 to establish the employee’s identity and employment authorization. According to the U.S. Citizenship and Immigration Services (USCIS), the document(s) must be physically examined by the person completing Section 2 of Form I-9 on behalf of the employer. The employee must also be physically present with the document examiner during this process. Verification of the authenticity of documents submitted by employees pursuant to I-9 requirements cannot be accomplished via webcam or by viewing electronic copies of verification documents.

An employer with remote employees can designate an authorized representative or agent to physically review the documents submitted by employees and complete Section 2 of the Form I-9, even if that representative is not an employee of the hiring employer. USCIS guidance states that employers can designate or contract with “someone such as a personnel officer, foreman, agent, or anyone else acting on [the employer’s] behalf, including a notary public” to serve in this role, subject to restrictions explained below. If an authorized representative is verifying employee documents and completing Form I-9s on the employer’s behalf, the employer must ensure that the authorized representative carries out full Form I-9 responsibilities. It is not acceptable for the representative to physically examine the employee’s employment authorization and identity documents, and leave Form I-9 Section 2 for the employer to complete. Employers are ultimately liable for any violations in connection with the I-9 form or the verification process.

USCIS does not require the authorized representative to have specific qualifications or a written agreement to serve as a representative of the employer; however, it is prudent to have a written agreement with the representative and make sure the representative you choose for this task is very familiar with the I-9 process.

Not surprisingly, employers who hire in the state of California have additional restrictions. California law currently prohibits a notary public from completing Form I-9 as an employer’s authorized representative, unless that notary is also qualified and bonded as an immigration consultant. This restriction is part of California lawmakers’ efforts to protect the immigrant community against fraud by restricting immigration services that can be offered by notaries and other non-attorneys. Employers should only hire a notary public to serve as their authorized representative if that notary has sufficient experience with I-9 verification. There is no requirement for Form I-9 to be notarized. Notaries who serve as authorized representatives should not affix their seals to the I-9 because they are not acting in their official capacity as notaries public.

Regardless of whether your employees work remotely or onsite, I-9 compliance is essential to avoid liability. For additional information and resources, you can access the Handbook for Employers (Form M-274) at https://www.uscis.gov/sites/default/files/files/form/m-274.pdf and find additional information at https://www.uscis.gov/i-9-central.