How Can I Complete an I-9 Form for a Remote Employee?
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.
Practice Pointer
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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.