Completing employment paperwork including the I-9 form for a remote employee is always difficult. Federal law requires the employer to examine, with the employee being physically present, each identification document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing copies sent by mail or examining documents via a webcam or other means is not permissible.
A little-known provision of Form I-9 rules allows the employer to authorize anyone (except the new hire himself) to review the I-9 form and identification documents for remote hires. The employer may designate an “Authorized Representative” to complete Form I-9.
Options within the company might include other employees such as a personnel officer, foreman or project manager at a remote work location. But the Authorized Representative does not have to be another employee. In fact, the Authorized Representative could be the new hire’s next-door neighbor, the teller at the remote hire’s bank, even Uncle Ben… anyone expressly authorized to act on behalf of the employer… although designating a relative of the new hire would probably not be a good idea.
The Department of Homeland Security does not require the Authorized Representative to have specific agreements or other documentation for Form I-9 purposes, nor must the representative have any particular qualifications.* However, if an Authorized Representative fills out Form I-9, the employer is still liable for any errors or omissions, so it’s a good idea to find someone who is familiar with Form I-9 rules.
Remote Hires, Form I-9 and Notaries
We have found that Notaries can be a great fit for our Independent Service Provider program. A Notary Public is a good option not because of their official position but because of their broad availability, and because they are accustomed to identifying their clients, reviewing official documents and witnessing signatures.
Notaries are often confused about their role in the Form I-9 process, believing that they cannot complete Form I-9 because they are prohibited from notarizing their own signature. However, completing Section 2 of Form I-9 is not a notarial act; the Notary will act as the employer’s representative, not as a Notary. The Notary should never affix her seal or stamp to the form.
Notaries should keep in mind:
- Form I-9 does not require a notarial act; therefore, the Notary cannot affix their notarial seal impression to Form I-9;
- A Notary cannot even be required to attest to the fact that they are a Notary, because they are prohibited from notarizing their own signature. In short, the employer cannot require the Notary to notarize anything;
- The Notary (or any individual) should be expressly and specifically authorized to act as an Authorized Representative. It is not sufficient for an employer to simply require the new hire to “find a Notary”;
- Because the Notary is acting as the representative of an employer who must, by law, be responsible for the Notary’s errors, s/he should become familiar with Form I-9 and how to complete Section 2 correctly on the employer’s behalf.
*(As usual, the rules are different in California where Form I-9 is considered an “immigration document” which must be completed by specially-licensed individuals.)