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How to Draft a Remote Form I-9 Standard Operating Procedure in Six Steps

During the past month, HR departments across the US have scrambled to implement a truly “remote” new hire Form I-9 operation as a result of the COVID-19 pandemic. Time worn and trusty I-9 procedures have gone out the window, replaced instead by hastily concocted workflows for hiring a new employee who will not set foot in an HR office for the foreseeable future.

As is often the case, the HR department has the unenviable task of balancing the business need for new employees (many of whom are in fact “essential”) with the legal need to ensure that employees are being hired in compliance with federal and state laws. To complicate matters, the Form I-9 rules themselves have recently (and temporarily) changed, which casts even more uncertainty over the entire process.

But all is not lost. For HR personnel have a not-so-secret weapon for bringing order to complex and convoluted legal frameworks through the ever-popular HR Standard Operating Procedure document (or SOP for short). When drafted well, SOPs provide structure, control, and consistency to a process while also ensuring legal and regulatory compliance.

In the I-9 world though, they offer an even greater potential benefit – a clear and demonstrable example of the “good faith” efforts that are so important to Immigration and Customs Enforcement (ICE) – the agency that may ultimately be reviewing your I-9s to look for errors and omissions.

So how does one get started with a remote I-9 SOP? As with many things in the I-9 compliance realm, you’ll first need to consider your own unique hiring practices and procedures in order to determine the best policy (and guidelines) that will work at your organization. What follows below is five-step framework for performing this analysis, which includes tips and suggestions for creating a clear and concise SOP that can be used now (in the time of COVID-19) and beyond. 

Step 1: Define your Remote Work Policy

At the onset, your Remote I-9 SOP should describe (or briefly mention) your organization’s policy for when an employee will be onboarded remotely. For many organizations, the decision to invoke remote onboarding is largely based on where the employee will be working, and how far that individual is from the nearest office or work location. Other organizations may use remote onboarding based on the type of job role or some exigent work-related circumstance.

In the time of COVID-19 however, remote onboarding is just simply a way of life. As organizations around the country continue to observe social distancing, most new hires are now being onboarded through an entirely remote process, which includes the completion of the Form I-9.

Nevertheless, employers should clearly state this policy in their Remote I-9 SOP. And in fact, employers choosing the “virtual verification” remote I-9 method (described below) are actually required by ICE to maintain “written documentation of their remote onboarding and telework policy for each employee.”

Step 2: Determine your verification method

As of this writing, employers essentially have two options for remotely onboarding newly hired employees during the COVID-19 pandemic. The newest option is the so-called “flexible” path announced by DHS which enables an employer operating remotely to virtually examine an employee’s documents now, followed by an in-person verification later when normal business operations resume. We’ve discussed this option (and the most recent FAQs) here, here, and here.

The second path, used by the vast majority of employers, involves asking authorized representatives (what we refer to as “remote agents”) to review documents and sign Section 2 of the Form I-9 on the employer’s behalf. The remote agent option has several distinct advantages over the virtual verification method since the employee only needs to be verified once (by the remote agent), and there are no follow-up tasks or special Form I-9 annotations needed. Many HR departments will also find comfort in knowing that the remote agent path has been around for many years, and will not be going away anytime soon.

Step 3: Outline the Remote I-9 Process

Whichever method you choose, you’ll want to consider all of the tasks that will need to be performed by the various “players” in the remote I-9 process. For example, organizations using a remote agent should clearly define the steps to be performed by the HR representative, the new hire employee, and the agent throughout the lifecycle of the I-9 completion.

In a typical remote agent workflow, the HR representative will kick-off the I-9 process by sending the new hire a detailed email which describes the Form I-9 and the guidelines for choosing a remote agent. The employee will then complete Section 1 remotely, decide which documents to present, and then visit the remote agent.

The remote agent will review the instructions from the HR, examine the documents presented by the new hire employee, and complete Section 2. If the employer wishes to retain copies of the supporting documents (which is generally recommended), the remote agent will make copies on the employer’s behalf. In the final stage, the HR team reviews the I-9 (and supporting documents), and submits to E-Verify if applicable.

The flowchart below provides a nice overview of the various tasks and the players involved in the 3 major steps – Section 1 completion, Section 2 completion, and I-9 review. Employers should consider using swim lanes (illustrated in the graphic below) to show who is responsible for each action.

Step 4: Include Citations to Legal Authority

A good Remote I-9 SOP will also establish the legal authority for the particular verification path chosen by the employer. For example, employers using the virtual verification method should reference the ICE announcement on March 20th which introduced and described the process for virtually verifying a new hire employee. Employers would be well-served to download, print, or otherwise preserve this announcement as a justification for this very unusual (and unprecedented) process.

Employers using the remote agent path can reference the DHS regulations, 8 CFR 274a.2(b)(1)(ii)), which authorize the use of a third-party representative for the completion of Section 2 or Section 3 as applicable. The latest Form I-9 instructions are also a good reference source, as they now clearly indicate that an authorized representative can be any person the employer designates.

Step 5: Document the Nitty Gritty Details

Once the legal authority has been clearly cited, employers should document the detailed steps which will be performed by each of the players involved. This part of the SOP often follows (or simply refers to) the overall workflow diagram and includes helpful pointers for a future HR rep who may “inherit” this task down the road.

Below are a few questions which should be addressed in your detailed workflow:

  • How will the I-9 process be initiated (including by whom and when)?
  • What types of instructions will the employee receive for completing Section 1?
  • For virtual verification:

– How will the employee provide you with the documents for review (video, email, through electronic I-9 system, etc.)?
– What is the process for flagging the I-9 for in-person follow-up?
– Who will be responsible for meeting with the employee in-person once normal business operations resume and annotating the I-9?

  • For remote agent:

– What is your organization’s policy on who may act as an authorized representative?
– What kinds of instructions will the remote agent receive?
– Will HR be available for questions from the remote agent during the I-9 completion (perhaps through video conferencing?)

  • How will reverifications (Section 3s) be handled for employees with expiring work authorization?

Step 6: Where to go for help

Last but not least, your Remote I-9 SOP should include an “additional information” section, which contains links to helpful resources (either internal or external). These resources may include the I-9 regulations, the M-274 handbook, your electronic I-9 help files (if applicable), and other educational materials which support the overall SOP. Employers working closely with legal counsel may also wish to include their attorney’s contact info here in case any tricky questions arise.


Now more than ever, employers need clear and concise SOPs to maintain a sense of control and consistency, two goals which are especially important in the world of I-9s. As remote work continues to be a way of life for most organizations, HR folks should strongly consider drafting (and implementing) a remote I-9 SOP that ensures both onboarding efficiency and compliance with ever-changing immigration rules and procedures.

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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