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As more companies hire remote workers, they have likely come across one of the more vexing Form I-9 compliance issues—how to verify a remote employee's work authorization documents within the required three-day deadline?
"In my experience, there is one I-9 dilemma which trumps all others," said John Fay, vice president and general counsel at the LawLogix division of Hyland Software, headquartered in Phoenix, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services. "How in the world can you complete an I-9 form for a newly hired individual who lives hundreds or even thousands of miles away from your nearest office or location, is unable to visit a hiring or HR manager anytime soon, and as it turns out, is super important and must begin work as soon as possible?"
Employers hiring remote workers don't get any kind of break from the requirements. They are expected to verify employment eligibility by reviewing original documents in person with the employee and completing the Form I-9 within three business days of the new hire's start date.
[Council for Global Immigration e-learning course: Employment Eligibility: A Practical Guide to I-9 and E-Verify]
Because employers are unable to use video technology such as Skype during the verification process, there are challenges to completing the Form I-9 for remote workers, said Montserrat Miller, a partner in the Washington, D.C., office of Arnall Golden Gregory. "Employers must complete the Form I-9 for these individuals using a trusted agent or representative. In theory this can be anyone, understanding that some states such as California place restrictions on who can complete the Form I-9 and best practices also dictate that the trusted agent or representative be someone other than a family member of the worker."
Miller explained that remote hires must still complete section 1 of the form and the employer's agent or representative must complete section 2 in its entirety, including a tactile inspection of the documents presented by the employee. "This means no photocopying of the documents and sending them to human resources for completion of section 2," she said.
The challenges with using an authorized representative include finding someone who is willing and clearly understands what is being asked of them.
"The guidance often given in these situations is to have the remote employee use a local notary public to notarize the Form I-9," said Kayla Dineen, SHRM-CP, project implementation manager at Helios HR, an HR consulting firm based in Reston, Va. "In many cases, this process doesn't work out as intended because a notary public is not sure of their responsibilities or the process in completing the form. I've had a number of clients share that employees came back and said the notary republic refused to help them."
Even after you find someone to handle your I-9, you have to make sure that the form is completed properly and on time to avoid potential penalties or fines, Fay added. "That's the real kicker here with remote I-9 compliance. No matter who you choose to complete the form, you as the employer are ultimately on the hook for getting everything right."
Experts recommended the following to ensure remote I-9 compliance:
Create a policy clearly stating the types of people who may act as an agent for your organization. "The employer can list the best possible choices based on prior experience and include any additional instructions or guidance which might be helpful," Fay said. He recommends clients consider HR professionals at nearby organizations, local librarians, attorneys or accountants, state workforce agency staff, or notaries. A nationwide listing of notaries can be found here. "It's best to choose an individual who is already familiar with the Form I-9 process in order to ensure a smooth and quick verification process," Fay said. It's also important to know which states may prohibit notaries from completing the Form I-9, or have different requirements, he added. "California, for example, has indicated that the completion of an I-9 form requires you to be bonded as an immigration consultant."
Provide clear instructions for completing the form. It's critical to make clear to notaries that they are not actually notarizing the Form I-9, Dineen said. They should not stamp a notary seal on the form. "He or she is simply entrusted to review the forms of identification, complete the form, and attest that to the best of their knowledge the information provided is true and accurate."
She advised HR to reach out to the notary and have a conversation to ease any concerns in case the individual has not worked with the form before or does not understand the request. "The notary public may not be familiar with the requirements of the form," she said. "Provide clear guidance on what you are hoping to review and what information you are hoping for them to complete to avoid errors."
Fay advised sending out a standardized letter with instructions to both the new employee and the agent who will be completing the form. The letter should describe the overall process, contain detailed instructions and communicate the importance of completing the I-9 in the required time frame. "Employers will often instruct the agent 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," Fay said.
The instructions could also include frequently asked questions, a sample of a completed form and directions for returning the form back to the company in a timely manner.
Review all remotely completed I-9s. Employers should establish a review process for all remotely completed I-9s. "Make sure to validate that all of the information is correctly entered, and there are no other issues which might draw scrutiny from an auditor," Fay said.
Common mistakes to look for include:
Employers participating in E-Verify have additional concerns, Fay added. "Employers must be cognizant of the E-Verify three-day deadline, which mirrors the I-9 requirement. Given this tight deadline, you'll need to make sure the I-9 is completed quickly so that you have a sufficient amount of time to review and submit the information to E-Verify before the deadline lapses."
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