In today’s Advisor, Attorney John Nahajzer offers advice for employers fulfilling I-9 duties for remote employees with local notaries.
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Nahajzer is the managing shareholder of law firm Maggio+Kattar in Washington, D.C. (jnahajzer@maggio-kattar.com).
The concept of a “virtual team” is not yet contemplated by the Form I-9 process, which still requires that the employee be physically present at the time his or her documents are reviewed by the employer (or the employer’s “Authorized Representative”). So how do you handle remote employees?
Onboarding remote employees is already a challenge for employers, says Nahajzer, but when employers reach out to local notaries, per the U.S. Citizenship and Immigration Services’ (USCIS) suggestion in The Employer Handbook M-274, and the notaries refuse, what are employers to do?
As employers adapt to an increasingly virtual work world, it can be frustrating, and even difficult, for employers to comply with rules and regulations that cannot evolve as quickly as their business practices do.
Many employers are leveraging technology to adopt virtual team organizational structures, composed of employees distributed across the nation, and/or around the world, but the replacement of physical presence with virtual presence creates a number of logistical challenges, and one of those challenges includes completion of Form I-9.
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Physical Presence to Complete I-9 Section 2
When the Immigration Reform and Control Act was implemented in 1986, the existence of virtual teams was not contemplated. A decade later, when E-Verify began as the Basic Pilot Program, most people did not own a mobile phone, and the concept of FaceTime, Skype, or applications that scan and deposit your checks without ever going to a bank was still inconceivable.
Unfortunately, today, Form I-9 still requires that employers, or their Authorized Representative, review original documentation in the presence of the employee. This is a challenge when an employee works in a remote location. Immigration and Customs Enforcement (ICE) has told us that they do not currently endorse the use of virtual technology, such as FaceTime or Skype, to allow an employee to be present when the original documents are reviewed.
ICE has also admitted that while they, in conjunction with the Department of Justice (DOJ), continue to review and implement new ways to support the compliance efforts of employers, they do not foresee a virtual solution in the near term. Therefore, “virtual presence” does not yet serve to satisfy the procedural requirements of Form I-9. USCIS’s Handbook for Employers suggests that employers may use a notary or other Authorized Representative to assist with completion of Form I-9. Essentially, an employer can designate anyone to complete the document review and certification in Section 2 on their behalf. However, considering how error-prone Form I-9 can be, “just anyone” isn’t the best solution for employers.
If anyone can complete Section 2 of Form I-9, why are employers of remote employees seeking out notaries?
Employers are simply seeking a consistent and reliable solution. Notaries are broadly available nationwide, and association directories make it easy to locate and identify them; therefore, even though they are simply performing a service as a company’s Authorized Representative and not a notary, they are often the first choice for employers.
Why do some notaries refuse to complete Section 2 of Form I-9?
In some states, such as Texas, for example, information has been provided to notaries that can easily be interpreted as prohibiting them from completing Form I-9. While it is true that Texas state law does not explicitly “provide notaries public the authority to complete the Form I-9,” the same is true of any state law. The American Society of Notaries provides an excellent explanation for notaries facing this confusion.
Form I-9 does not need to be notarized. Individuals, who may be notaries, are not acting in a notary public capacity when they complete Section 2 of Form I-9 on behalf of an employer and, therefore, do not require authority under state law to do so.
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Are notaries who refuse to act as an Authorized Representative wrong to do so?
Not really. Notaries are prohibited in some states from refusing to perform services as a notary public except in certain specific circumstances. When a notary is asked to act as an Authorized Representative for Form I-9, they are not acting in their capacity as a notary public and, therefore, are not prohibited from refusing to provide services.
In tomorrow’s Advisor, alternatives to notaries, plus we introduce the all-things-HR-in-one-place website, HR.BLR.com®.
California recently made the decision that CA Notaries cannot complete an I9, because the form is considered an immigration document.
What I don’t understand is that the Notary is not acting in the capacity of a Notary in completing an I9, so what does it matter?
In August of 2014, California made an interesting determination that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. This is because the
The Secretary’s office considers Form I-9 to be an immigration form, and they have separate requirements of notaries who complete what they consider “immigration forms”. Since the Form was established by immigration law, it could be argued that it is an “immigration form”, even though, unlike any other immigration form, one must be completed for all employees hired after November 6, 1986 regardless of immigration status.
This ruling does conflict with the rules regarding of the Form I-9, which allow for any person to serve as the employer’s authorized representative. Since the California ruling is a relatively new one, we shall have to see how this ultimately plays out.