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Best Practices for Completing the Form I-9 Remotely during the Coronavirus Outbreak

**UPDATE** – we reached out to the USCIS to see if they were contemplating any special allowance or “waiver” for employers from completing the I-9 within the 3-day time period during the coronavirus outbreak. Below is their response (spoiler alert – the answer is no).

3/12/2020: the current policy remains in effect and indicates, in part: “When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, 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.”  Further, the current requirement found at Section 4.0 of M-274 says:  “Within three business days of the date employment begins, the employee must present to you an original document or documents that show their identity and employment.” 

During the past few weeks, employers across the US have been implementing a wide variety of employee policies and procedures in response to the rapidly-spreading novel coronavirus, also known as COVID-19. From travel restrictions to “work from home” directives, HR departments have been inventing on-the-fly changes to their policies in order to prevent the potentially deadly coronavirus from spreading around offices, public transit and anywhere in between.

First and foremost, employers want to maintain a safe workplace and environment which protects the health of employees, customers, and other visitors. At the same time, organizations also need to ensure the continuity of their business operations, which includes the onboarding of newly hired employees, and the completion of the Form I-9 as required by law.

And yet, as many HR managers are fully aware, the Form I-9 process has clearly not kept up with the times. While the United States Citizenship and Immigration Services (USCIS) has recently released a new version of our favorite form, the actual steps for verifying employment eligibility are still “so 1980s,” harkening back to a time when in-car radio phones were considered high-tech.

Despite all of the technology advances during the past 30+ years, and the rapidly changing nature of our workforce, the law still requires employers to physically examine documents in-person with the employee and complete the Form I-9 within 3 business days of the employee’s start date.

And therein lies the challenge for employers who wish to onboard employees remotely (away from employer facilities) as part of their comprehensive “work from home” coronavirus policy. New hires will inevitably need to be verified ‘in-person’ with an employer representative, which for most employers means that both the new hire (and usually the HR person) need to travel to the employer’s offices.

The good news is that the law allows you to utilize so-called “authorized representatives” to act on the employer’s behalf by reviewing the documents in-person with the new hire employee and completing Section 2 of the Form I-9. But as with all things I-9-related, there are pitfalls for the unwary, and employers must be especially careful to implement a policy that will withstand the scrutiny of an Immigration and Customs Enforcement (ICE) auditor.

To help you sort out this conundrum, we’re going to first discuss the current “guidance” from the Department of Homeland Security on completing I-9s for remotely hired workers. Then, we’ll reveal a few “best practices” to consider for completing the Form I-9 during the coronavirus outbreak.

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 mentioned above, 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.

The DHS does not, however, specifically indicate who can (or cannot) serve as the authorized representative. Over the years, they’ve provided a few “examples” of permissible representatives, including personnel officers, foremen, agents, or notaries. It’s also worth noting that the DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes.

More recently, the new Form I-9 instructions (published on January 31, 2020) clarified that an authorized representative can be any person you designate to complete and sign the Form I-9 on your behalf. This revised instruction reflects a longstanding tenet of the law – namely, that employers have broad discretion in this area as long as they remember that they are ultimately on the hook for any I-9 mistakes which may occur.

Sounds pretty flexible, right? Well, not exactly. As mentioned earlier, the new hire employee must be physically present with the authorized representative during the examination. Both USCIS and ICE have made it very clear that the examination of documents must be an “active” (or tactile) review, which eliminates the possibility of using Skype or other video conferencing technology. More recently, the USCIS has expressly noted on their I-9 central website that “Online audio-video conference technology is not an acceptable method of examining documents for the purpose of the Form I-9.”

The USCIS has also made it clear that the person who examines the documents must be the same person who completes and signs Section 2 of the Form I-9. A few years ago, a staffing company got into hot water when they implemented a process whereby one individual would review the documents (in-person), make copies, and then forward the packet to another individual who signed section 2. While the court ultimately decided in favor of the employer (based on the unclear Form I-9 guidance at the time), the USCIS has now squarely closed this loophole by explicitly noting that the document verifier must complete and sign Section 2.

Tackling the Remote I-9 Problem

To sum up the guidance, employers may designate any person as an authorized representative so long as that person meets in-person with the employee, reviews their original documents, and completes and signs Section 2. Employers are also responsible (and liable) for any issues with the Form I-9 completion.

Getting back to the problem at hand: employers looking to implement a “work at home” policy during the coronavirus outbreak have to figure out three important procedural issues:

(1) Who should serve as the authorized representative?

(2) What is the process (workflow) for completing a remote I-9?

(3) How do we ensure the Form I-9 is completed properly?

We’ll tackle each one of these in our best practices section below.

Best Practices for Remote I-9 Completion During the Coronavirus Outbreak

Choosing an Authorized Representative

Now that we understand the law (and various sub-requirements), employers need to decide who exactly will serve as the authorized representative for their remotely hired employees. And one of the most important factors during this stressful time period is ensuring the well-being and safety of everyone involved.

Practically speaking, this means that you should, within the confines of the law, provide flexible options for the new hire in choosing an authorized representative while ensuring a relatively smooth (and painless) verification process. While there is no definitive (one size fits all) solution, the following are two best practices which should be considered:

(1) Remote I-9 Completion Centers

With remote work at an all-time high, many employers are now utilizing smart electronic I-9 systems which provide access to a network of remote I-9 completion centers that are located throughout the US. Participating employers can invite their newly hired (remote) employees to login into the electronic I-9 system, complete section 1 at their home, and then schedule an appointment at a nearby “brick and mortar” location that has personnel trained in I-9 compliance.

This automated workflow can enable your organization to maintain a “work from home” policy during the Coronavirus outbreak, while also providing your newly hired employees with the convenience of an I-9 center which is located near their home. A trusted I-9 network will also have a defined coronavirus (COVID-19) plan of action to ensure the health and well-being of their employees and customers – including contingency plans in the event the virus continues to spread.

(2) Find a Friend Method

If a national I-9 completion center is not available (or convenient), employers will need to devise a clearly defined strategy for choosing an authorized representative for employees hired during the coronavirus outbreak. Under “normal” (non-pandemic) circumstances, employers typically rely on a host of potential representatives, including notaries, attorneys, accountants, bank representatives, or staff at a local state unemployment or workforce agency.

While any of these individuals may be permissible representatives under the I-9 regulations, employees may be nervous to visit a “stranger” during the coronavirus outbreak – especially one that is not tied to a defined and well-established I-9 completion center. Moreover, certain states (such as California and Texas) have defined rules for when a notary can touch an I-9 form, which may further complicate the process.

Fortunately, employers actually have a simpler solution at their disposal, one that provides maximum flexibility to their newly hired employees, while complying with the Form I-9 requirements discussed above. We’ll call this the “find a friend” method, a unique approach to remote I-9 compliance that is now being considered by many employers with coronavirus (COVID-19) stay at home policies. Here’s how it works:

  • As an employer, you implement a policy that your newly hired employees can visit a friend or colleague to complete the I-9 verification process. The choice is theirs, as long as they provide the individual with the employer’s letter and instructions for completing the form.
  • You provide the new hire with clear and explicit instructions (for the authorized representative) which outlines the steps for reviewing documents and completing Section 2 of the I-9.
  • Once the process has been completed, you review the I-9 (and any supporting documents) for accuracy and sufficiency.

In years past, employers have expressed some misgivings about designating a “friend” of the employee for verifications purposes, due to the potential for “bias” or perceived conflict of interest that may exist. And to be clear, this option may not be advisable for ALL employers, based on their audit history and other factors. But for many others, the ‘find a friend’ method provides a perfectly reasonable solution to a vexing problem – one that is even more pronounced in light of the coronavirus outbreak.

An even better approach is to use a combination of both options 1 and 2 above. You can have the national I-9 center available for most employees, but also give them the option (and choice) to find a friend if they are not comfortable visiting the center.

Implementing your Remote I-9 Policy

Now that you’ve determined “who” can serve as an authorized agent, you need to develop a clearly defined process (including documentation) for how the remote I-9 shall be completed. Generally, this begins with creating standardized instruction letters to be provided to both the new hire employee and the authorized representative 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 representative, provide them with clear instructions on who may (or may not) serve as your agent.

You’ll also need to provide detailed instructions for your authorized representative as well (especially since he or she may not be that familiar with the I-9 process). For example, employers will often instruct the authorized representative 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. If you’re using an electronic I-9 system, you can simply login and view the remote I-9 on your dashboard (no shipping or sending required!).

Lastly, make sure to provide both the new hire and the authorized representative 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!

Reviewing 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 authorized representative). While many such issues can be avoided by clear and effective instructions, you should still 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 and 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 and 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 alongside 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.

Conclusion

Remote I-9 compliance can be challenging in the best of times, without the added complexity of a global pandemic. Employers looking to implement a mandatory (or optional) work at home policy need to implement a process that meets the exacting requirements of immigration compliance while also ensuring the safety and well-being of their entire workforce.

Fortunately, the “I-9 law” (while dated) provides some flexibility with regards to employers who wish to outsource their verification responsibilities by enabling the use of an authorized representative. Employers looking to take advantage of this allowance should strongly consider using a national I-9 center along with a flexible “find a friend” policy to ensure compliance during these difficult times.

Last, but not least, you should always make sure to speak with your own immigration counsel to discuss any employer-specific concerns or issues which may exist at your particular organization.


About John Fay

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 President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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