When hiring a new employee, or converting an employee from an independent contractor to an employee, the company must complete an I-9 form in person, within three days of hire, to establish the employee’s authorization to work in the United States. For remote employees who are far from the nearest office, this can pose a problem if there is no employee nearby to inspect their identification. Video and/or Skype is not an acceptable means of fulfilling the “in person” requirement.
The In-Person Inspection Rule
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When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
What Can an Employer Do in this Situation?
Using an Agent or Authorized Representative
Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, licensed attorneys, agents, or notary public*. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. However, if an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process.
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If the authorized representative refuses to complete Form I-9 (including providing a signature), another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.
The Rule on Using Notaries in California
*Under California law, the only individuals who can assist clients with completing immigration forms (such as the Form I-9) are licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under California law (Business & Professions Code, Sections 22440, 22441).
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A notary public who is not qualified and bonded as an immigration consultant is prohibited from completing immigration forms for his or her clients (Government Code, Section 8223 (c)).
Companies that need to remotely hire an employee in California can designate an authorized representative to meet with the employee, inspect the documents provided by the employee, and complete Section 2 of the Form I-9 on behalf of the employer.
If you contracting, with a notary public for this person, the notary must also be an immigration consultant. If not, the notary public is prohibited from completing the Form I-9 on the company’s behalf.
The designated representative must understand what he or she needs to do to complete the Form I-9. The employer will still be liable for any violations committed by the representative when completing the Form I-9.
The Grady Firm attorneys have experience completing I-9 forms, and can answer your questions, or prepare the I-9 forms on your behalf, in person throughout Southern California. Contact us to set up an appointment for your employees.
For more information on converting independent contractors to employees, download our FREE AB5 Compliance Handout.
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Always make sure you are using the latest version of the I-9 form, and store the completed I-9 forms in a separate I-9 file, rather than including the I-9 forms in each employee’s personnel file. This way, in the event of an audit, you can provide the auditing agency with just the I-9 forms, and not other documentation that could open the door to additional issues or compliance violations.
Additional Q&A About I-9 Forms from USCIS
The following information was taken from the USCIS website on I-9 forms.
Can I include Form I-9 in a job application packet?
Yes. You can include Form I-9 in a job application packet as long as you apply this practice uniformly to all job applicants, and do so for information purposes. Do not ask employees to complete Form I-9 as part of the application process. Form I-9 must be completed after your employee has been provided and accepted an offer of employment.
If I am self-employed, do I have to fill out a Form I-9 on myself?
A self-employed person does not need to complete a Form I-9 on his or her own behalf unless the person is an employee of a separate business entity, such as a corporation or partnership. If the person is an employee of a separate business entity, he or she, and any other employees, will have to complete Form I-9.
Do the owners of a company have to complete Form I-9? What if one of the company’s owners refuses to complete Form I-9?
Form I-9 requirements are triggered by the hire of an individual for employment in the United States. A “hire” is the actual commencement of employment of an employee for wages or other remuneration. If any of the owners are employees of the company, then each owner must complete a Form I-9. Failure to comply with all Form I-9 requirements could result in civil penalties against the employer.
Am I required to complete Forms I-9 for employees who will work only one day?
Yes. Unless the individual engages in casual domestic employment, you must complete Form I-9 for each employee hired to work in the United States, even if your employee works only one day.
I am self-employed and don’t need to complete the Form I-9. Do I need to be authorized to work in the United States to be self-employed?
Yes. Individuals must be work-authorized to perform any employment in the United States, even if it is not employment in an employer-employee relationship requiring completion of the Form I-9. Undocumented aliens, or others lacking work authorization, are NOT authorized to be self-employed or to work as independent contractors. Any person who obtains the labor of an independent contractor, knowing that the contractor is not work authorized, is subject to civil penalties under section 274A of the INA.
How far in advance can the Form I-9 be completed?
Form I-9 may be completed as soon as the employer has offered the individual a job and the individual has accepted the offer. Each newly hired employee must complete and sign Section 1 of Form I-9 no later than his or her first day of employment.
Is an H-4 with a pending I-129 to become an H-1B employment authorized? The individual was an H-1B prior to becoming an H-4 and is in an authorized period of stay.
Department of Homeland Security | DHS.gov
USCIS has interpreted Section 105 of AC21 to only provide for portability of H-1B status. Thus, if the nonimmigrant is not currently maintaining a valid H-1B status, or in an authorized period of stay based on a timely filed extension of H-1B status petition, the H-1B status portability rule would not apply. An individual in H-4 status is not able to port and must wait for the I-129 to be approved before he/she can begin work as an H-1B with either a new or a previous employer.
If you have questions about your immigration status and completing the I-9 contact us to speak with one of our immigration attorneys.
Do I need to fill out Forms I-9 for independent contractors or their employees?
No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Forms I-9 for that company’s employees. The construction company is responsible for completing Forms I-9 for its own employees. However, you may not use a contract, subcontract or exchange to obtain the labor or services of an employee knowing that the employee is unauthorized to work.
For an analysis of whether your worker should be classified as an independent contractor or employee, contact us, or read our article about the changes to the law in California under AB 5 (as of January 1, 2020), or how to convert independent contractors to employees.
The Grady Firm attorneys provide the following employment law services:
Act as I-9 agent;
I-9 audit preparation or defense;
Employee v. independent contractor classification analysis;
Assistance with converting independent contractors to employees;