By: Natalie L. Murphy, Hall Render Killian Heath & Lyman PC
Many employees are opting to work remotely today due to the efficiency and convenience of technology. Nonetheless, when employers hire remote employees, employers must ensure continued compliance with Form I-9 requirements.
Overview of Form 1-9
All employers are required to ensure proper completion of Form I-9, under the guidance of United States Citizenship and Immigration Services (“USCIS”), to verify the identity and employment authorization of employees in the United States. All employees, including citizens and noncitizens, must complete this form.
To fulfill Form I-9 requirements, employees must present employers with the acceptable documents to prove identity and employment authorization. Employers, or their authorized representatives, must physically examine these documents to ensure that each document appears to be genuine and relates to the respective employee. Upon completion of Form I-9, employers must retain the properly completed Form 1-9 for either three years after the date of hire or one year after the date the employment ends, whichever is later. Forms I-9 must be available for inspection by authorized government officials.
Remote Employee Issues
There have been ongoing questions by employers as to the proper procedure for completing Forms I-9 for remote employees. Specifically, many employers have questioned whether reviewing or examining documents via webcam is permissible. In response, USCIS recently confirmed that when employers are unable to be physically present with employees for document verification, such as situations where employers are onboarding remote employees, employers may designate authorized representatives to complete Form I-9.
Where employers designate authorized representatives, those representatives, including personnel officers, foremen, agents, or notaries, must carry out all Form I-9 responsibilities. This means that authorized representatives must physically examine documents to determine if the documents are from the List of Acceptable Documents attached to Form I-9 and whether the documents appear to be genuine and relate to the employee that presented them. USCIS confirmed that reviewing documents via webcam is not permissible.
Importantly, USCIS confirmed that employers remain liable for any violations in connection with Forms I-9 where authorized representatives complete the forms. To that end, it is critical that employers understand proper Form I-9 procedures and ensure any authorized representatives are following the necessary protocol.
Practical Tips for Employers
Where employers designate authorized representatives, such as a notaries, for Form I-9 purposes, it is important for employers to have standard procedures in place and instructions for employees to provide the authorized representatives. The instructions should include steps for the representative to follow, guidance for the employee on what to do after the representative has completed his or her role, and instruct the representative to sign any additional business documentation when necessary.
USCIS confirmed that when employers designate notaries to act as authorized representatives for I-9 completion, the notaries are not acting in their notary public role for this process. Instead, the notaries are solely acting as authorized representatives of employers and therefore should not provide notary seals on Form I-9.
Employers can remain compliant with Form I-9 requirements even when they are unable to be physically present for the I-9 process. However, it is critical for both employers and their designated representatives to follow correct procedures in these instances to mitigate potential penalties in the event of an I-9 inspection by the government.