Hiring an employee who does not physically come to your workplace has always presented problems for office admins completing employment paperwork including the I-9 form. Federal law requires you to physically examine, with the employee being physically present, each identification document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing copies sent by mail or examining documents via a webcam or other means is not permissible. This is extremely difficult if you never meet the new hire face-to-face!
You may not know that you can authorize anyone (except the new hire himself) to review the I-9 form and identification documents for remote hires. You may designate an “Authorized Representative” to complete Form I-9 on behalf of your company. Your options might include other employees such as personnel officers, foremen or project managers at a remote work location. You will, of course, probably want your representative to be a manager at some level and familiar with your hiring process and Form I-9.
But the Authorized Representative does not have to be an employee of your company. If the new hire is completely remote, you may allow or instruct the new hire to identify and contact someone to act as your representative. In fact, your Authorized Representative could be the new hire’s next-door neighbor, although we recommend that your representative be someone with whom the new hire does not have a personal relationship. The teller at the remote hire’s bank is okay… Uncle Ben would probably not be a good idea.
The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on your behalf, you are still liable for any violations in connection with the form or the verification process.
When completing Form I-9, you or authorized representative must physically examine 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.
Remote Hires, Form I-9 and Notaries
We highly recommend that you give your new hire plenty of written guidance and instruction for completing Form I-9 because, regardless of who acts as your Authorized Representative, you are still liable for any violations in connection with the form or the verification process. To minimize issues, we also recommend authorizing a Notary Public to act as your representative.
However, it is illegal for the Notary to complete Form I-9 in her official capacity! And it is illegal for you to require it!
A Notary is our recommended option not because of their official position but because of their broad availability, and because they are accustomed to identifying their clients, reviewing official documents and witnessing signatures. In completing the I-9 form on your behalf, the Notary will be acting as your Authorized Representative, not as a Notary.
If you require your new hire to find a Notary Public to complete Form I-9, you should provide a packet of instructions for both the new hire and the Notary. The Department of Homeland Security does not require the Authorized Representative to have specific agreements or other documentation for Form I-9 purposes, and there is no “official” form for authorizing someone to act on your behalf, so you must create these forms and instructions to suit your own circumstances.
In preparing that instruction, keep in mind:
- Form I-9 does not require a notarial act; therefore, you cannot require the Notary to affix their notarial seal impression to Form I-9;
- You cannot even require the Notary to attest to the fact that they are a Notary, because they are prohibited from notarizing their own signature. In short, you cannot require the Notary to notarize anything;
- Ideally, you should specifically authorize the Notary (or any individual) to act as your Authorized Representative. It may not be sufficient for you to require the new hire to just “find a Notary”;
- Because you are responsible for any form violations and because the Notary probably isn’t familiar with Form I-9, you should provide clear guidance on completing the form, what documents are acceptable, etc. Your packet must include, at a minimum, the full instructions that accompany Form I-9;
- There is no established nor recommended fee, although we strongly recommend that you pay a Notary or other individual for their time. You will contract with your representative regarding the cost, if any;
- If, after you specifically authorize a Notary or other individual to act as your Authorized Representative, they refuse to complete Form I-9 (including providing a signature), another Authorized Representative may be selected.
Our client companies may contact us for assistance in preparing the documentation required for verifying remote new hires.
Resource: American Society of Notaries, “I-9 Form: Notaries Beware!“
