Selecting an authorized representative to complete Form I-9 for remote hires
Completing Form I-9 for a remote employee is always difficult. However, using a knowledgeable and experienced Authorized Representative can eliminate the headaches associated with complying with Form I-9 rules. Choosing the right Authorized Representative can greatly reduce the risk of costly fines in the event of a government I-9 audit.
Remote Form I-9, face-to-face
To confirm a new hire’s eligibility to work in the United States, employers must examine identification documents. Because the employer must ensure that the documents are original, not obviously fraudulent, and relate to the employee presenting them, the form must be completed in a face-to-face meeting with the employee. Reviewing copies sent by mail or digitally, or examining documents via a webcam or other means is a gross violation of the rules.
Form rules must be met regardless of whether you hire locally or remote. A face-to-face meeting is required; employers who skirt the rules face a stiff fine for each incorrect form. If government auditors find a pattern or practice of violating the rules, penalties are enhanced. Practices that result in discrimination or the employment of unauthorized workers can result in criminal penalties. And it’s not just the business owners who are at risk of incarceration; recent prosecutions have reached to lower-level managers and supervisors as well.
The Form I-9 authorized representative
A little-known provision of Form I-9 rules allows the employer to designate an “Authorized Representative” to complete Form I-9. The employer may authorize anyone (except the new hire himself) to review the I-9 form and identification documents; describe the documents on the form; and complete the Section 2 Certification.
From the Form I-9 instructions:
“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.”
And that means anyone. 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 with the employee.
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 the new hire’s spouse… the employer can authorize anyone to act on their behalf.
Stated another way, the person who views original identification documents in the presence of the employee and describes them in Section 2 must be the person who signs the Section 2 Certification as the employer’s authorized representative… whoever that person is.
Having a non-employee complete the form does not relieve the employer of responsibility to complete and retain a legal and accurate form. The employer is still liable for any errors or omissions, so it’s a good idea to authorize someone who is familiar with Form I-9 rules or, at least, give that person plenty of guidance.
Remote hires, Form I-9 and notaries
A Notary Public can be a viable option for completing Form I-9 for remote hires; but not because of their official position. Employers often direct their new remote hires to contact a Notary because they are easy to find, and because notaries are accustomed to identifying their clients, reviewing official documents and witnessing signatures.
However, using a Notary Public does not guarantee a correct Form I-9! Notaries do not possess any particular knowledge or authority simply because of their commission. Most notaries do not complete Form I-9 as a normal course of business and, in a couple of states, are barred from doing so. Notarization does not make a Form I-9 more “valid” and form rules expressly prohibit the Notary from stamping the form with their commission seal.
Even worse, some employers instruct the Notary to complete and notarize a second document, which is intended to serve as an additional Section 2 certification. The additional form is valueless to the purpose of Form I-9; in fact, it serves as proof that the employer doesn’t understand the form. And if the Notary does not sign the Certification section, the form is considered incomplete and will result in a fine if caught in an audit.
“Into the wild” – putting the employee in charge
The biggest mistake you can make is to require the employee to find someone on their own to complete Form I-9. In fact, we wonder why so many employers do it as there is no “up side”:
- The employer is responsible for creating and retaining a correct form, not the employee. The employer will pay the fine if the form is incorrect or, even worse, if the employer’s practice results in the hiring of an unauthorized worker.
- The form will most likely be incorrect. Form I-9 isn’t “rocket science,” but it’s easy to make a mistake if you don’t know what you’re doing. The employer will spend time on the back end correcting mistakes, or risk retaining an incorrect form.
- Many employers limit the employee’s options by instructing them to complete the form with a Notary. As noted previously, completion by a Notary does not guarantee success. In fact, a Notary is more likely to add incorrect info or even stamp the form with their notary seal; an act that is expressly prohibited by form rules. Finally, most notaries will not touch Form I-9, which they believe carries more liability for them if it is completed incorrectly.
- This process shifts the cost to the employee, making it more likely that the employee will cut corners, commit fraud or, at the very least, find someone who is less likely to complete the form correctly.
The best solution: a remote hire Form I-9 service
Remote hire Form I-9 verification services like Verify I-9 provide a simple solution; they connect your new hire with a trained and knowledgeable individual who will complete Form I-9, correctly and legally, in the required face-to-face meeting. The advantages are numerous:
- You maintain control of the process, thus minimizing your liability.
- Errors are minimized or eliminated, saving you time in remediation.
- You can take full advantage of the flexibility that Form I-9 rules provide regarding the Authorized Representative and the face-to-face meeting.
- Accepting the cost up-front saves you money and man-hours.
Remote hire Form I-9 services (also known as “Form I-9 Agent” services) operate via various methods to accomplish the same purpose:
- Service centers – Your employee goes to a location where a Form I-9 agent completes the form. The agent is usually an independent contractor who may or may not have received training to complete Form I-9 correctly.
- Mobile service provider – Your employee meets with someone from the service’s network at a mutually-convenient location. Some services vet and train their service providers (usually independent contractors like mobile notaries) while others “cold call” notaries in the area of your new hire and offer no training at all. Some services require the employee to return the form to you; others review the form and may correct errors before returning it to you.
- Real-time management – The employee identifies a friend, neighbor, family member or other adult to act as the employer’s Authorized Representative. In a phone call during the face-to-face meeting, a trained and experienced Form I-9 expert guides the Authorized Representative to review documents and complete the form correctly.
Not all remote hire Form I-9 services are the same… some review documents by webcam, which is prohibited. Others instruct the employee to send digital copies of their identification to the service who then completes Section 2, which is also a serious violation of form rules. Others do not actually vet and train a network of providers, but contact notaries in the employee’s area on a case-by-case basis. Some require that you sign a contract, subscribe to their software package or pay a monthly fee, regardless of how many times you use their service.
Questions to ask the remote I-9 service
Completing Form I-9 correctly is important to you, but even more important is protecting your new hire’s personal information. You should ask the following questions of any remote Form I-9 service you are considering:
- Are your networks and processes hardened to protect against a hacking attack? Have they been tested by an independent service?
- Will my new hire’s personal information be encrypted while in transit to and on your network?
- Will my new hire’s personal information be stored in the United States?
- If you use independent contractors, have their systems and processes undergone any data security testing?
- Do you carry professional and cyber liability insurance coverage? Do your independent contractors carry similar coverage?
- Do you vet and train the individuals who will act as the authorized representative, or do you provide direct supervision of that person while they complete the form?
- Do you sell or share my company information or my employee’s personal information?
Remember that you remain responsible for all errors in the form or process, so you should investigate any remote Form I-9 service thoroughly, and especially before signing any contract.