U.S. employers face a logistical nightmare when it comes to complying with Form I-9 employment verification for remote employees. The problem has become increasingly challenging as more employers rely on telecommuters and remote employees across all industries and occupations, including the health care industries (e.g. home care nurses, physical and occupational therapists, physicians), the sports and entertainment industries (e.g. crew members such as stylists, set designers, carpenters, seamstresses working on multiple television or movie sets and stages, camerapersons and crew working for televised national sporting events or award shows), the hi-tech and consulting industries (e.g. software engineers, programmers), veterinarians, sales and marketing representatives, to name just a few. With the fast-growing, ever-changing nature of the mobile workforce, it is disappointing that the USCIS missed the boat on providing more guidance on this issue, particularly since the M-274 Handbook for Employers has been revised several times over the past few years.
The M-274 Instructions
The current version of the M-274 Handbook (April 27, 2020) states that an employer may “designate, hire, or contract with any person you choose to complete, update or make corrections to Section 2 or 3 on your behalf. This person is known as your authorized representative. The authorized representative must perform all the employer duties described in this handbook and complete, sign and date Section 2 or 3 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanction laws, committed by your authorized representative.” The M-274 makes clear that even if someone else fills out Form I-9 as an “authorized representative” on behalf of the employer, he or she must carry out full Form I-9 responsibilities. The designated person must not only physically examine the employee’s employment authorization and identity documents, but must also sign Section 2. The designated person cannot leave Section 2 for the employer to complete and sign. Moreover, the employer is still liable for any violations or defects in connection with the form or the verification process.
The Confusion about the Use of Notaries
In older versions of the M-274, USCIS indicated that a notary public could complete Section 2 of the I-9. Many employers used notaries just because there seemed to be a perception of trustworthiness with them. However, many states, including California and Texas, have now prohibited notary publics from signing Form I-9s with some exceptions.
Alternatives to Notaries
Are there any other alternatives? What about using a friend or spouse or neighbor? Any person can act as an “authorized representative” on behalf of an employer but it comes down to the perception of credibility and trustworthiness of an “acceptable” or “bona fide” representative. In reality, many employers have had no choice but to use a friend, neighbor or spouse. Since an employer is liable for any mistakes or violations of the “representative,” it is essential to develop a working standard operating procedure (SOP) if you have a remote workforce.
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- The SOP, at minimum, should:
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- Outline steps for the “authorized representative” to follow;
- Instruct the employee on what to do (if anything) after the “authorized representative” has completed their part; for example, some employers require photocopies of the documents that were used as part of the verification process; and,
- Instruct the “authorized representative” to sign any additional business documentation, if necessary. For example, some employers ask the “authorized representative” to sign a separate attestation that the person is in front of them, the documents have been reviewed and reasonably relate to the person and appear to be reasonably genuine.
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- If the “authorized representative” is a friend, spouse or neighbor, a best practice might be to have a designated HR representative be on the phone (or Webcam/Skype/Zoom/FaceTime/Webex, etc.) to walk the person through Section 2 or 3.
