The authorized representative and a `conflict of interest`

A family member as the Authorized Representative: isn't that a `conflict of interest`?

“You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.”

Who can act as your authorized representative?

The paragraph above from the Form I-9 instructions is the sum total of the guidance provided by the USCIS for selecting an authorized representative. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. The representative need not have any particular qualifications, licensing, knowledge, experience or affiliation with the employer.

Further, no person is barred from acting as the Authorized Representative because of their affiliation or relationship with the employee. An individual is not disqualified from serving simply because they know or are related to the new hire.

Options within the company might include other employees such as a personnel officer, foreman or project manager at a remote work location. The Authorized Representative can also be the new hire’s next-door neighbor, the teller at the bank, Uncle Ben or even the employee’s spouse. As long as the individual correctly performs the duties of the authorized representative, it doesn’t matter who they are.

Any other restrictions are self-imposed

Because you designate the person who will represent you, you can adopt any restrictions or qualifications you choose for the representative. If you choose, you can restrict your new hire to completing the form with a Notary Public, a labor attorney, or another disinterested party.

In our opinion, though, it makes no sense for an employer to adopt a policy that restricts who can act as their authorized representative. Remember, Form I-9 is your responsibility as the employer to complete. A restriction on who can act as the representative is not a limitation on the new hire but on you and your processes. The federal government doesn’t care if the form is completed by a spouse or other family member; just that it be completed correctly and legally.

Further, a person’s title or lack of connection to your employee does not guarantee an error-free Form I-9. Not even a labor attorney is qualified to complete the form correctly simply because of his or her legal training. 

A 'conflict of interest'?

Most employers who decide not to use our service do so because they believe that it’s a ‘conflict of interest’ to allow a family member to serve as the authorized representative. While most, when pressed, find it difficult to explain their opposition some argue that a spouse or family member has a vested interest in the process because they will benefit from the employment of their spouse.

But if you restrict a new hire to finding a Notary, labor attorney or other individual who will be paid for her services, you are literally sending your new hire to someone who has an interest in the form’s completion!

For that matter, the employer has an even greater interest in getting the form done, and yet the employer is not barred from completing the form because of this “conflict.”

As long as the form is completed correctly and legally, it doesn’t matter if the authorized representative has a conflict of interest; either actual or perceived. The authorized representative does not have to be a totally disinterested party.

The bottom line: is the form correct?

If your company were to be selected for an audit of your I-9s by the federal government, no government auditor will question the identity of person who completed Section 2. They will identify substantive violations of the form rules– and potentially fine your company– while the qualifications of the person who made the mistakes– or their relationship to the employee– will be absolutely meaningless.

Employers make Form I-9 more difficult than it has to be by being more concerned about who completes the form than about whether or not it is completed correctly.