DHS Guidance on Completing I-9s for Remote Workers
The Department of Homeland Security (“DHS”) has long been aware of the I-9 trials and tribulations associated with remotely hired workers. And as mentioned above, the law allows employers to designate an authorized representative to meet with the employee, examine original documents, and complete section 2 on behalf of the organization.
The DHS does not, however, specifically indicate who can (or cannot) serve as the authorized representative. Over the years, they’ve provided a few “examples” of permissible representatives, including personnel officers, foremen, agents, or notaries. It’s also worth noting that the DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes.
More recently, the new Form I-9 instructions (published on January 31, 2020) clarified that an authorized representative can be any person you designate to complete and sign the Form I-9 on your behalf. This revised instruction reflects a longstanding tenet of the law – namely, that employers have broad discretion in this area as long as they remember that they are ultimately on the hook for any I-9 mistakes which may occur.
Sounds pretty flexible, right? Well, not exactly. As mentioned earlier, the new hire employee must be physically present with the authorized representative during the examination. Both USCIS and ICE have made it very clear that the examination of documents must be an “active” (or tactile) review, which eliminates the possibility of using Skype or other video conferencing technology. More recently, the USCIS has expressly noted on their I-9 central website that “Online audio-video conference technology is not an acceptable method of examining documents for the purpose of the Form I-9.”
The USCIS has also made it clear that the person who examines the documents must be the same person who completes and signs Section 2 of the Form I-9. A few years ago, a staffing company got into hot water when they implemented a process whereby one individual would review the documents (in-person), make copies, and then forward the packet to another individual who signed section 2. While the court ultimately decided in favor of the employer (based on the unclear Form I-9 guidance at the time), the USCIS has now squarely closed this loophole by explicitly noting that the document verifier must complete and sign Section 2.
Tackling the Remote I-9 Problem
To sum up the guidance, employers may designate any person as an authorized representative so long as that person meets in-person with the employee, reviews their original documents, and completes and signs Section 2. Employers are also responsible (and liable) for any issues with the Form I-9 completion.
Getting back to the problem at hand: employers looking to implement a “work at home” policy during the coronavirus outbreak have to figure out three important procedural issues:
(1) Who should serve as the authorized representative?
(2) What is the process (workflow) for completing a remote I-9?
(3) How do we ensure the Form I-9 is completed properly?
We’ll tackle each one of these in our best practices section below.
Best Practices for Remote I-9 Completion During the Coronavirus Outbreak
Choosing an Authorized Representative
Now that we understand the law (and various sub-requirements), employers need to decide who exactly will serve as the authorized representative for their remotely hired employees. And one of the most important factors during this stressful time period is ensuring the well-being and safety of everyone involved.
Practically speaking, this means that you should, within the confines of the law, provide flexible options for the new hire in choosing an authorized representative while ensuring a relatively smooth (and painless) verification process. While there is no definitive (one size fits all) solution, the following are two best practices which should be considered:
(1) Remote I-9 Completion Centers
With remote work at an all-time high, many employers are now utilizing smart electronic I-9 systems which provide access to a network of remote I-9 completion centers that are located throughout the US. Participating employers can invite their newly hired (remote) employees to login into the electronic I-9 system, complete section 1 at their home, and then schedule an appointment at a nearby “brick and mortar” location that has personnel trained in I-9 compliance.
This automated workflow can enable your organization to maintain a “work from home” policy during the Coronavirus outbreak, while also providing your newly hired employees with the convenience of an I-9 center which is located near their home. A trusted I-9 network will also have a defined coronavirus (COVID-19) plan of action to ensure the health and well-being of their employees and customers – including contingency plans in the event the virus continues to spread.
(2) Find a Friend Method
If a national I-9 completion center is not available (or convenient), employers will need to devise a clearly defined strategy for choosing an authorized representative for employees hired during the coronavirus outbreak. Under “normal” (non-pandemic) circumstances, employers typically rely on a host of potential representatives, including notaries, attorneys, accountants, bank representatives, or staff at a local state unemployment or workforce agency.
While any of these individuals may be permissible representatives under the I-9 regulations, employees may be nervous to visit a “stranger” during the coronavirus outbreak – especially one that is not tied to a defined and well-established I-9 completion center. Moreover, certain states (such as California and Texas) have defined rules for when a notary can touch an I-9 form, which may further complicate the process.
Fortunately, employers actually have a simpler solution at their disposal, one that provides maximum flexibility to their newly hired employees, while complying with the Form I-9 requirements discussed above. We’ll call this the “find a friend” method, a unique approach to remote I-9 compliance that is now being considered by many employers with coronavirus (COVID-19) stay at home policies. Here’s how it works:
- As an employer, you implement a policy that your newly hired employees can visit a friend or colleague to complete the I-9 verification process. The choice is theirs, as long as they provide the individual with the employer’s letter and instructions for completing the form.
- You provide the new hire with clear and explicit instructions (for the authorized representative) which outlines the steps for reviewing documents and completing Section 2 of the I-9.
- Once the process has been completed, you review the I-9 (and any supporting documents) for accuracy and sufficiency.
In years past, employers have expressed some misgivings about designating a “friend” of the employee for verifications purposes, due to the potential for “bias” or perceived conflict of interest that may exist. And to be clear, this option may not be advisable for ALL employers, based on their audit history and other factors. But for many others, the ‘find a friend’ method provides a perfectly reasonable solution to a vexing problem – one that is even more pronounced in light of the coronavirus outbreak.
An even better approach is to use a combination of both options 1 and 2 above. You can have the national I-9 center available for most employees, but also give them the option (and choice) to find a friend if they are not comfortable visiting the center.
Implementing your Remote I-9 Policy
Now that you’ve determined “who” can serve as an authorized agent, you need to develop a clearly defined process (including documentation) for how the remote I-9 shall be completed. Generally, this begins with creating standardized instruction letters to be provided to both the new hire employee and the authorized representative who will be completing the form.
In the employee instruction letter, you should describe the overall process and also communicate the importance of completing the I-9 in a timely fashion (many employers will clearly state that it’s a federal law). If the employee is responsible for choosing his/her own representative, provide them with clear instructions on who may (or may not) serve as your agent.
You’ll also need to provide detailed instructions for your authorized representative as well (especially since he or she may not be that familiar with the I-9 process). For example, employers will often instruct the authorized representative to quickly review section 1 (in order to confirm the information is correct); request original documents from the list of acceptable documents; and carefully complete all required information in section 2.
You might also consider addressing frequently asked questions (such as how to complete the start date, the business name/address to use, etc.) and provide a sample (completed) I-9. You should also indicate if you require copies of the supporting documents, and provide instructions for returning the entire packet. If you’re using an electronic I-9 system, you can simply login and view the remote I-9 on your dashboard (no shipping or sending required!).
Lastly, make sure to provide both the new hire and the authorized representative with the phone number of someone at your organization who can answer any questions which might arise during the verification process. Addressing I-9 issues in real-time can save you hours of work later on!
Reviewing remotely completed I-9s
As mentioned above, employers are ultimately responsible for any mistakes or omissions on the I-9 (regardless of who you might choose as your authorized representative). While many such issues can be avoided by clear and effective instructions, you should still pay extra special attention to remote I-9s to make sure they are error-free. Here are a few of the common mistakes which can occur:
- Wrong documents accepted
- Missing or transposed document information
- Failure to retain photocopies (when required by the organization or E-Verify)
In order to spot (and correct) these issues, employers should establish a defined review process for all remote I-9s completed out in the field. In performing your review, make sure to validate that all of the section 1 and 2 information is correctly entered, and there are no other issues which might draw scrutiny from an auditor (such as similar handwriting in section 1 and 2, presence of notary seal, fax header, etc.)
Lastly, if you’re using a well-designed electronic I-9 system, you can review the completed I-9 alongside of the scanned supporting document (to compare important names, numbers, and dates) and use reports and dashboards to monitor all I-9s needing review and approval. Once the I-9 has been validated, the system will remove it from your to-do list and allow you to focus on I-9 obligations for other employees.