Learning & Development

Q&A: Remote Workers and Employment Authorization

The HR Daily Advisor has thoroughly explored how the new administration’s aggressive immigration enforcement policies mean that employers should prepare for more workplace audits and other related activities. Today I’ve brought our Q&A about how that might influence I-9s and other authorizations for remote workers to the Recruiting Daily Advisor.
By Holly Jones

Employers should also be prepared for an increase in workplace audits and document inspections from Immigration and Customs Enforcement (ICE). (For additional information on what to do if ICE comes knocking, see this article.)
During a recent webinar on Smart I-9 Recordkeeping, we had a subscriber ask several timely questions on how best to comply with the requirements of Form I-9 when you have remote workers. Her questions and our guidance were as follows:

Is it acceptable to use Skype® or Facetime to complete I-9s for remote workers?

Unfortunately, no—and the United States Citizenship and Immigration Services (USCIS) addresses this directly in its FAQ. When an employee presents authorization documents required by List A or Lists B and C of Form I-9, these documents must be physically examined by the person completing Section 2 of Form I-9. This review must also occur in the presence of the employee. So, reviewing or examining these documents via webcam, Skype, Facetime, or similar remote service is not permissible.

If you have remote employees who will not report to the physical workplace premises, you may have a third party act as an authorized representative of the employer to review these documents and fill out Form I-9. However, this authorized representative must be able to physically review the documents. If this is not feasible, another representative who can review the documents must be selected.

Are we required to hire a notary public as our authorized representative?

When an organization has no authorized representative or agent in the same geographic area as the remote worker, then it has become a common practice for employers to use a notary public to perform this service. After all, the USCIS specifically notes that employers “may designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on your behalf, including a notary public, to complete Section 2.” (See the USCIS M-274 Handbook for Employers, newly revised to reflect the latest revision of Form I-9).

However, not only are you not required to do so, but a notary may not be the best choice.
First, it’s important to understand that the authorized representative serves as an agent of the employer, so if the authorized representative makes a mistake or misrepresentation in verifying documentation or filling out Section 2 of Form I-9,  the employer—not the individual representative—is liable for the mistake.
So it’s in your best interest to ensure that the person reviewing your employees’ documentation and completing Form I-9 is as familiar with the process—and its pitfalls—as you would be if you were completing the form yourself.
Yet, some notaries may be no more familiar with the I-9 process than the average layperson—and many are decidedly uncomfortable with the process. For example, are you certain that the notary is familiar enough with the various List A, B, and C documents to reasonably ascertain their validity, even if a document other than a driver’s license or Social Security card is provided? Can you be certain that a notary, when presented with one of the more uncommon, yet acceptable, List A documents, will not ask to see a different form of identification with which he or she is familiar?
Though a notary may often be valuable in his or her official status as a trustworthy and impartial party, when serving as your authorized representative it’s more important that the notary adequately serve your needs—in this case, accurate compliance with the I-9 process.
There is no need to have an I-9 notarized—in fact, notaries specifically should not affix their seals to the I-9, as they are not acting in their official capacity as notaries public. So there’s no specific incentive to hire a notary for this task. In fact, some states prohibit or restrict notaries from participating in the I-9 process.
For example, California law prohibits notaries from completing immigration documents—including Form I-9—unless the notary is also separately qualified and bonded as an “immigration consultant.” This restriction includes notaries acting in a nonnotarial capacity (e.g., as an authorized representative). (Cal. Gov. Code Section 8223(c)).
In other words, even if I remove my “notary hat” and don’t use my official seal, it’s against the law for me to complete Form I-9 if I’m not an immigration consultant.
Sound confusing? It is. To avoid this confusion, it may simply be easier to seek out an immigration consultant or other nonnotary professional to serve as the agent.
Tomorrow we’ll look at who else can serve as an authorized representative, plus the bottom line.