April 16th, 2020 | Sterling
Your Top 8 Questions on Form I-9 Remote Hiring Answered
One of the greatest challenges employers face in managing the Form I-9 process is making sure their forms are compliant for remote employees.
In the midst of a pandemic like we are facing, and the resulting attitudes toward remote work arrangements, the chance of compliance risk surrounding Form I-9 only increases. In a sudden change of events, more people are looking for jobs that offer remote positions out of sheer necessity. And while the world is making every attempt to distance themselves from each other, employers currently do not have the freedom to send a hiring manager to the remote employee, or fly the employee to headquarters to complete the Form I-9. Even if they did, budget constraints and other factors reduce the opportunity to have the form completed in person.
Organizations that hire employees remotely risk non-compliance if new hires complete the Form I-9 without proper guidance. This is especially true today amid the coronavirus crisis.
Below are eight tips to help complete Form I-9 for remote employees. Any information provided is not intended to be, and shall not be construed as, legal advice or a legal opinion.
What is the best practice to complete Form I-9 for an employee that is offsite?
Prior to the Covid-19 pandemic, there were no exceptions in how Form I-9 was completed for remote new hires. The rules stipulated that Section 2 must be completed in the presence of an employer or authorized employer representative, and the employee was still required to present original documents.
In the wake of Covid-19, however, the Department of Homeland Security (DHS) made an announcement on March 20, 2020 providing flexibility in its requirements related to Form I-9 compliance. According to the announcement, “Employers with employees taking physical proximity precautions due to Covid-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.”
It’s important to note that the provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, according to DHS. However, if newly hired employees or existing employees are subject to Covid-19 quarantine or lockdown protocols, DHS will evaluate the situation case by case.
Additionally, employers have the ability to designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete the section and sign Form I-9 on their behalf, including personnel officers, foremen, agents, notaries, or other trusted sources. DHS does not require the authorized employer representative to have specific agreements or other documentation for Form I-9 purposes. You can designate any individual to assist on your behalf. However, it is important that the individual understands how to complete Form I-9 because the employer remains liable for any violations in connection with the form or verification process.
Can remote workers have a Form I-9 completed before their first official start date?
Yes. Form I-9 can be completed as early as when an employee has accepted an offer of employment.
What is the reason why notaries are mentioned when discussing remote hires if they do not act as a Notary?
In general, notaries are referred to in remote hiring scenarios because of their widespread presence throughout the U.S., their credibility and expertise in witnessing and authenticating the execution of certain documents, their experience taking affidavits and statutory declarations, and their unbiased and impartial role. There is a perceived credibility and general trust given to this public office.
DHS’s U.S. Citizenship and Immigration Services (USCIS) has stated that the notary does not act in the capacity of a notary when completing Section 2. In other words, he or she is not using notary credentials to complete the form, and is not stamping/sealing the Form I-9. All individuals acting on behalf of the employer are authorized representatives. Ultimately, the employer is still liable for any violations or omissions associated with the completion of the Form I-9.
Can an employee’s manager serve as an authorized agent for Section 2 completion?
Yes. The employer can designate anyone to serve as their authorized employer agent to complete Section 2 on the employer’s behalf. However, please note that the employer is still held liable for meeting Form I-9 requirements, including its accuracy and compliance.
What steps must be taken take to rehire a remote employee?
If you rehire an employee within three years of the date of the initial execution of his or her previous Form I-9, you may complete a new Form I-9 or you may be able to rely on the previously completed Form I-9 in certain circumstances. You may select an authorized representative to act on your behalf when re-verifying the employee remotely. The authorized agent must complete and sign Section 3, following the same criteria for rehires (found on pp. 24-25 of the M-274). The original signed Section 3 must be sent to the central office for review and retention along with the original Form I-9.
If hiring remotely, is it acceptable to keep faxed copies of the Form I-9 on file or is original necessary for audit purposes?
In remote hiring situations, when an agent is acting on your behalf and completing the Form I-9, the original signed form must be returned to the central office for review and storage.
If an error made in Section 2 by the authorized agent was identified, does the employer have the ability to make the correction on the original form, or does it have to complete a new Form in person?
Some corrections can be made by the employer, initialed, and dated. However, a missing certification signature and certification date must be done by the person that originally completed Section 2. If there are errors or omissions with the list of documents, the employer may make corrections if copies of the documents were collected when Section 2 was completed. If copies of the documentation were not collected, a new form will need to be completed with both the employee and employer (or agent) and original, unexpired documents. A note should be included in the file regarding the reason the employer made changes to an existing Form I-9 or completed a new Form I-9. If completing a new Section 2 of the Form I-9 because of a missing signature, the employee must provide acceptable Form I-9 documentation for the employer (or agent) to examine. This section should be attached to the original Form I-9 with a note explaining what occurred. Please be sure to sign and date the note.
Is it a requirement to retain copies of identification for all employees?
Form I-9 regulations allow employers to choose whether or not to keep copies of documentation that employees submit to complete Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documentation at any time, as long as you do so for all employees, regardless of national origin or citizenship status. Otherwise, you may be in violation of anti-discrimination laws.
You should not shred previously retained copies of documents. DHS regulations provide that once copies of documents are made, they must be retained with the Forms I-9 or with the employee’s records in a secure environment to protect Personally Identifiable Information (PII).
Additionally, if you participate in E-Verify, you must retain a photocopy of the document presented by the employee if it was used with the Photo Matching Tool prompt. Copies of documents that are required for retention by E-Verify include a U.S. passport or passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766).
As the employer, it is a best practice to document when new policies become effective or current policies change in any way.
During this time of crisis, or at any time, Sterling is here to help you navigate through these challenging times as you work to fulfill your mission.
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.