Remote Employees: An Increasingly Challenging I-9 Verification Dilemma

By Tien-Li Loke Walsh

This article was updated.
U.S. employers face a logistical nightmare when it comes to complying with Form I-9 employment verification for remote employees. The problem is becoming 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 M-274 Handbook confirms that an employer may “designate someone to fill out Forms I-9 for you, such as a personnel officer, foreman, agent, or anyone else acting on your behalf, such as a notary public.” The M-274 further notes that even if someone else fills out Form I-9 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.

Many wonder why this is an issue in the 21st century when we have smartphones, tablets and every kind of gadget and technology available. Why can’t an employer use video conferencing or Skype? The person completing and signing the Form I-9 Section 2 attestation on behalf of the employer must be able to see the person in the flesh and review the original documents (as in look at, touch, and feel the original document or hologram) and believe them to be genuine on their face.

The Confusion about the Use of Notaries

An employer may designate any of the above-mentioned individuals (i.e. a personnel officer, foreman, agent or anyone else acting on behalf of the employer) to complete Form I-9 for their remote employees. While there is no requirement to use a Notary Public (“Notary”), there is a perception of trustworthiness that results in many employers choosing to use notaries to complete the I-9 process for remote employees.

The common practical problem that arises with using notaries is that many notaries refuse to sign and notarize a Form I-9, often claiming that their state rules prohibit them from signing and notarizing their own signatures. Is there any truth to this? Well, yes and no. Sound like a lawyer? The confusion stems from the mistaken assumption that the notary is supposed to “sign and notarize” the Form I-9, when in fact, the notary is simply acting as an individual, or, as in USCIS lingo, the “agent” on behalf of the employer. Therefore, the notary only needs to see the original employment authorization and identity documents and complete and sign Section 2 of Form I-9. The requirement is not for the notary to act as a notary and notarize the Form I-9. There is no requirement for the Form I-9 to be notarized.

In sum, the act of signing the Section 2 attestation is an act performed by an individual, not by the office or position an individual holds. The notary is essentially acting as an “agent” on behalf of the employer to complete Section 2 of Form I-9 after seeing the “employee” and reviewing the original documents.

UPDATE (August 25, 2014): Restrictions For California Notaries
In August 2014, the California Secretary of State’s Notary Public & Special Filings Section clarified with the NNA that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. The Secretary’s office considers Form I-9 to be an immigration form. Any California Notary who is not an immigration consultant violates Government Code Section 8223(c).

(Via the National Notary Association)


Alternatives to Notaries

Are there any other alternatives? What about using a friend or spouse or neighbor? Any person can act as an “agent” on behalf of an employer but it comes down to the perception of credibility and trustworthiness of an “acceptable” or “bona fide” agent. Someone with a personal relationship to the employee can be “biased” and not, in my opinion, ideal.

Workable solutions to the remote-employee challenge depend on your workforce and industry. For example:

  • Develop a network of “notary public agents” in key cities where a company conducts business;
  • Call ahead of time to screen potential notaries in the designated locale;
  • Use a traveling notary; or,
  • Use a designated attorney.


    • If your organization opts to use a notary as an “agent” to complete Form I-9 employment eligibility verification, it’s important to develop a Standard Operation Procedure (SOP) with instructions for the employee to bring to the notary. The SOP, at minimum, should:
      1. Outline steps for the notary to follow;
      2. Instruct the employee on what to do (if anything) after the notary has completed their part; and,
      3. Instruct the notary to sign any additional business documentation, if necessary. (Some employers ask the notary to sign a separate attestation that the person is in front of them; the documents have been reviewed; and the documents reasonably relate to the person and appear to be reasonably genuine.)
Employers with a significant remote employee workforce should consider moving to an electronic I-9 system to manage the employment verification process as a whole. The benefits are numerous especially when fulfilling I-9 compliance for remote employees. However, procurement teams should carefully vet electronic I-9 software. Software that claims to “do it all” while offering a low price should be researched thoroughly, preferably with the help of counsel, to ensure the software optimizes your workflow and business needs and does not add any additional compliance risks to your organization.