Top 5 Best Practices for Remote I-9 Compliance
Let’s begin with a simple question: if you had to identify the one most vexing and troublesome aspect of completing I-9s, what would you choose? There are so many choices out there, it might be hard to pick just one. For many employers, it’s making sure that both the new hire and hiring manager properly complete all of the required fields on the form. For others, the most persistent pain arises from the rather unforgiving deadlines for the new hire and hiring manager/HR representative. And then of course there are the myriad of rules associated with hiring non-citizens, many of whom possess document types that you’ve never seen (let alone heard of).
In my experience though, there is one I-9 dilemma, which trumps all others – a verification riddle wrapped in a mystery inside an enigma. 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?
If you answered divine intervention, you’re actually pretty close. For as it turns out, there is no special dispensation (or relaxation of the rules) for employers with remotely hired workers. As with all new hires, the employer must verify employment eligibility by reviewing original documents in-person with the employee and completing and retaining the Form I-9 within 3 business days of the employee’s start date.
And therein lies the rub. How can you remotely verify your employee’s work authorization documents if you are situated on the other side of the country? And if you can find a way to do so, how can you make sure the whole process (which can also include E-Verify) happens within the 3-day deadline?
Let’s take a closer look!
DHS Guidance on Completing I-9s for Remote Workers
The Department of Homeland Security (“DHS”) has long been aware of the I-9 trials and tribulations associated with remotely hired workers. And as it turns out, the law allows employers to designate an authorized representative to meet with the employee, examine original documents, and complete section 2 on behalf of the organization. However, as many HR managers are painfully aware, the process for choosing this authorized representative can be challenging to say the least.
For starters, the DHS does not specifically indicate who can (or cannot) serve as the authorized representative. Instead, they simply provide a few examples of permissible representatives, which includes (but is not limited to) personnel officers, foremen, agents, or notaries. While all of these individuals may in fact be fine choices, employers still struggle with finding someone who actually knows what an I-9 form is (and is willing to take on the task of completing it).
Even if you can find someone brave enough to handle your I-9, you have to make sure that the form is completed properly (and on-time) in order to avoid potential penalties or fines. 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.
Now for the good news – as more and more companies have begun to employ a remote (and virtual) workforce, they have developed I-9 best practices and procedures which can be shared and utilized by other employers facing this same dilemma. So if you’re new to the world of I-9 compliance or simply want to consider some strategies for managing your remote I-9 compliance, read-on for the top 5 best practices used by employers today.
Top Five Best Practices for Remote I-9 Compliance
(1) Create a policy for choosing a remote agent
As mentioned earlier, employers can technically choose any individual to serve as their authorized representative for completing an I-9 form. While this flexibility may seem appealing at first, many employers suffer from “analysis paralysis” in trying to determine who they should approach for completing this important task.
In order to address this uncertainty, experts recommend creating a policy which clearly states the types of individuals who may act as an agent at your organization. In doing so, the employer can list the best possible choices (based on their prior experience) and include any additional instructions or guidance which might be helpful. Here is an example that I have used in the past:
While anyone may technically act as our representative, we prefer that you utilize one of the following:
- Human resource professional at a nearby company or educational institution
- Staff at your bank or financial institution
- Local librarian
- Attorney or accountant
- Staff at your state unemployment or workforce agency
- Notary public (see http://www.notarypublicdirectory.com/ for a listing in your area). Notaries may also be found in banks, mortgage companies, some real estate offices, and shipping entities such as FedEx/Kinko’s, Mailbox, etc.
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. If you have difficulty finding someone, please contact us as soon as possible so that we may assist.
As mentioned above, you should definitely customize this message (and the possible agent choices) based on your own organizational experience. For example, if the local librarian shrieks in horror when your new hire presents the I-9 form, you’ll probably want to exclude them from the list going forward.
Or more commonly, you may run into issues with a notary public, especially if there is any confusion regarding the role you are asking them to serve. While notaries can be a suitable choice for I-9 completion (based on their experience with reviewing documents, overall trustworthiness, etc.), you need to make it clear that you are NOT asking them to notarize a document. We’ve seen some cases where the notary has mistakenly notarized their own signature (a big no-no) or refused to complete the form altogether.
One final note on notaries – certain states have specific rules which may prohibit notaries from touching an I-9 form at all. California, for example, has indicated that the completion of an I-9 form requires you to be bonded as an immigration consultant under the Business and Professions Code Sections 22440-22449 (according to the National Association of Notaries). And Texas has indicated that notaries may not complete an I-9 form in a notarial capacity.
But all is not lost, because as noted above, you don’t have to choose a notary as your remote I-9 agent (a common misperception shared by many employers). Notaries, like the individuals above, are just one of the many possibilities to consider.
(2) Provide clear employee and agent instructions for completing the remote I-9
Once you’ve settled on the possible remote agent choices, you’ll want to develop standardized instruction letters to be provided to both the new hire employee and the agent who will be completing the form. In the employee instruction letter, you should describe the overall process and also communicate the importance of completing the I-9 in a timely fashion (many employers will clearly state that it’s a federal law). If the employee is responsible for choosing his/her own agent, provide with them several ideas and possibilities (using a list similar to the one provided above).
You’ll also need to provide detailed instructions for your remote agent as well (especially since he or she may not be that familiar with the I-9 process). For example, 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. You might also consider addressing frequently asked questions (such as how to complete the start date, the business name/address to use, etc.) and provide a sample (completed) I-9. You should also indicate if you require copies of the supporting documents, and provide instructions for returning the entire packet.
Lastly, make sure to provide both the new hire and the agent with the phone number of someone at your organization who can answer any questions which might arise during the verification process. Addressing I-9 issues in real-time can save you hours of work later on!
(3) Implement a review process for all remotely completed I-9s
As mentioned above, employers are ultimately responsible for any mistakes or omissions on the I-9 (regardless of who you might choose as your remote agent). While many such issues can be avoided by choosing the right agent (and instructing them properly), you’ll still need to pay extra special attention to remote I-9s to make sure they are error-free. Here are a few of the common mistakes which can occur:
- Wrong documents accepted
- Missing or transposed document information
- Failure to retain photocopies (when required by the organization or E-Verify)
In order to spot (and correct) these issues, employers should establish a defined review process for all remote I-9s completed out in the field. In performing your review, make sure to validate that all of the section 1/2 information is correctly entered, and there are no other issues which might draw scrutiny from an auditor (such as similar handwriting in section 1/2, presence of notary seal, fax header, etc.)
Lastly, if you’re using a well-designed electronic I-9 system, you can review the completed I-9 along side of the scanned supporting document (to compare important names, numbers, and dates) and use reports and dashboards to monitor all I-9s needing review and approval. Once the I-9 has been validated, the system will remove it from your to-do list and allow you to focus on I-9 obligations for other employees.
(4) Manage the E-Verify process
Employers participating in E-Verify (in one or more states) have additional compliance concerns and considerations which must be factored into the remote I-9 workflow. First and foremost, employers must be cognizant of the E-Verify three-day deadline, which mirrors the I-9 requirement (i.e., must submit the case no later than 3-days after the employee starts work for pay). 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.
E-Verify employers will also want to minimize the number of unnecessary (or accidental) tentative nonconfirmations (aka TNCs) which can occur if the I-9 information submitted to E-Verify is incorrect. TNCs frequently occur based on an incorrect or incomplete name that was recorded on the I-9 form or incorrect document or expiration date information. Once a TNC occurs, you’ll need to notify the remote employee and provide him/her with the required documentation.
While the TNC process can often be handled remotely, employers must be prepared to guide the employee through the step (which often involves visiting the local SSA or calling the DHS). In some cases, it may be necessary for the remote employee to visit an authorized agent again (particularly if the employer needs to validate new document information on the I-9).
One final note with E-Verify – if you’re consistently late with E-Verify submissions or generate a high number of TNCs, DHS may send you one of their “compliance notice” emails to make sure you understand the E-Verify requirements. While these notices are intended to educate (rather than punish), they can eventually lead to deeper inquiries regarding your employment verification process, or in the worst case scenario, a referral to another government agency which does have enforcement authority.
(5) Use an Electronic I-9 System with a Remote Verification Network
In light of the challenges posed by the remote I-9 conundrum, many employers are now turning to smart electronic I-9 systems which provide access to a network of trained individuals who can serve as your on-demand I-9 agent. Participating employers can invite their newly hired (remote) employees to login into the I-9 system, complete section 1, and then schedule an appointment with a nearby agent. This automated workflow addresses the biggest pain-point expressed by employers today – locating a trusted individual from afar who can meet with a remote employee to complete section 2. Once implemented, the network can take the “guess work” out of the remote I-9 process, and ultimately enable you to focus your attention on other important compliance or business activities.
One final note – as with all things compliance-related, you’ll need to carefully vet the electronic I-9 system to ensure that it not only meets your business/workflow requirements but is also compliant with DHS regulations. In particular, you’ll want to make sure that the vendor has maintained all required Form I-9 elements, enabled a compliant electronic signature, and has robust audit trails (which clearly track who was completing the I-9 form). Lastly, make sure you ask the vendor how they stay on top of I-9 and E-Verify regulatory requirements (a key component for sure, considering all of the frequent changes that have been occurring as of late).
More Information is Available!
If you have questions or concerns regarding remote I-9 compliance, please consider attending one of our free “Remote Verification Roadshow” events this fall. We plan to discuss remote I-9 challenges in a roundtable environment and explore creative solutions for addressing compliance concerns. To register or learn more about the events, please visit this link here: http://www.lawlogix.com/remote-verification-roadshows/
Hope to see you there!
John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.