A family member as the Authorized Representative: isn't that a `conflict of interest`?
“You may designate, hire, or contract with any person you choose to complete, update or make corrections to Section 2 or Supplement B, Reverification and Rehire, on your behalf, such as a member of the general public, personnel officers, foremen, agents, or notaries public. This person is known as your authorized representative. The authorized representative must perform all the employer duties described in the instructions and this handbook, and complete, sign and date Section 2 or Supplement B, Reverification and Rehire, on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations committed by the authorized representative acting on your behalf.
USCIS does not require you to have a contract or other specific agreement with your authorized representative for Form I-9 purposes. If the employer chooses to use a notary public as an authorized representative, that person is not acting in the capacity of a notary. This person must perform the same required actions as an authorized representative, including signatures. When acting as an authorized representative, a notary public should not provide a notary seal on Form I-9.
Employees cannot act as authorized representatives for their own Form I-9. Therefore, employees cannot complete, update, or make corrections to Section 2 or Supplement B, Reverification and Rehire for themselves or attest to the authenticity of the documentation they present.”
Who can act as the authorized representative for Form I-9?
Although employers have been allowed for over four decades to designate anyone to complete Form I-9 for them, the USCIS only recently clarified its guidance on this topic.
The Department of Homeland Security does not require the authorized representative to be an employee of the employer or to have specific agreements or other documentation authorizing the representative. The representative need not have any particular qualifications, licensing, knowledge, experience or affiliation with the employer.
Further, no person is barred from acting as the Authorized Representative because of their affiliation or relationship with the employee. An individual is not disqualified from serving simply because they know or are related to the new hire.
While options within the company might include other employees such as a personnel officer, foreman or project manager at a remote work location, the Authorized Representative can also be the new hire’s next-door neighbor, the teller at the bank, Uncle Ben or even the employee’s spouse. As long as the individual correctly performs the duties of the authorized representative, it doesn’t matter who they are.
Any other restrictions are self-imposed
Because you designate the person who will represent you, you can adopt any restrictions or qualifications you choose for the representative. If you choose, you can restrict your new hire to completing the form with a Notary Public, a labor attorney, or another disinterested party.
In our opinion, though, it makes no sense for an employer to adopt a policy that restricts who can act as their authorized representative. Remember, Form I-9 is your responsibility as the employer to complete. A restriction on who can act as the representative is not a limitation on the new hire but on you and your processes. The federal government doesn’t care if the form is completed by a spouse or other family member; just that it be completed correctly and legally.
Further, a person’s title or lack of connection to your employee does not guarantee an error-free Form I-9. Not even a labor attorney is qualified to complete the form correctly simply because of his or her legal training.
Is a family member a 'conflict of interest'?
Most employers who decide not to use our service do so because they believe that it’s a “conflict of interest” to allow a family member to serve as the authorized representative. While most, when pressed, find it difficult to explain their opposition some argue that a spouse or family member has a vested interest in the process because they will benefit from the employment of their spouse.
But if you restrict a new hire to finding a Notary, labor attorney or other individual who will be paid for her services, you are literally sending your new hire to someone who has an interest in the form’s completion!
For that matter, the employer has an even greater interest in getting the form done, and yet the employer is not barred from completing the form because of this “conflict.”
As long as the form is completed correctly and legally, it doesn’t matter if the authorized representative has a conflict of interest, either actual or perceived. The authorized representative is not required to be a totally disinterested party.
The bottom line: is the form correct?
If your company were to be selected for an audit of your I-9s by the federal government, no government auditor will question the identity of person who completed Section 2. They will identify substantive violations of the form rules– and potentially fine your company– while the qualifications of the person who made the mistakes– or their relationship to the employee– will be absolutely meaningless.
Employers make Form I-9 more difficult than it has to be by being more concerned about who completes the form than about whether or not it is completed correctly.
