Avoid costly fines by following these best practices for successful completion of Form I-9 for remote employees.
By Angela Lockman
More and more companies have a distributed workforce, with the number of offsite job postings growing 26 percent in the last year, according to Entrepreneur.com. Whether companies are bringing on remote employees in order to provide greater work-life balance or to access key talent outside the company’s immediate location, hiring remote and virtual employees has become an everyday occurrence. While a remote workforce can help to create a more satisfied team and provide access to a larger candidate pool, onboarding and managing offsite employees can create significant challenges, especially during Form I-9 completion.
Many sources report that across the board, 60 to 80 percent of all I-9s contain errors. And with the U.S. Immigration and Customs Enforcement (ICE) inspection of Form I-9, employers face an average fine rate of $935 per incorrct form, according to Poyner Spruill. This means that an employer with 5,000 new hires could have fine exposure in the millions of dollars (see Figure 1). So it’s essential that companies maintain I-9 compliance to avoid these costly fines and prevent reputational damage.
Expanded Remote Hiring, Expanded Opportunity for Risk
Since the enactment of the Immigration and Reform Control Act of 1986, employers have been required to maintain a Form I-9 on all current employees. Though Form I-9 is short, it is so complex: In fact, there is a 70-page manual of instructions on how to complete it, as well as a section of the U.S. Citizenship and Immigration Services (USCIS) website specifically dedicated to completion of it. The document is intended to demonstrate to the employer that the individual who is being hired is who they say they are (to confirm identity) and that they are authorized to work in the United States (to ensure employment is authorized). Despite the form being only two pages, common confusion among employers creates potential for errors leading to noncompliance, which creates fertile grounds for investigation and potential action by U.S. Immigration and Customs Enforcement (ICE), USCIS’ sister agency under the Department of Homeland Security.
One example of common confusion is that employers do not need all three lists in Section 2 completed. In fact, this could be considered “document abuse,” potentially leading to concerns from the Office of Special Counsel (OSC) for unfair immigration-related employment practices. Or ensuring that the most current version of the Form I-9 is being used since it’s illegal to use previous versions.
The new hire must complete Section 1 and can use a preparer or translator to do so. Section 2 is reserved for the employer upon demonstration by the employee of the required documents. One of the most challenging parts for remote hires is the requirement that all employees be in front of a completer, because the employer must physically inspect the documents and complete the attestation under penalty of perjury within three business days of hire.
As offsite workers may not be in close proximity to a company office, and many offices don’t have a trained official to manage the Form I-9 process, employers must find a way to onboard these employees and complete the document accordance with applicable laws and regulations. Other challenges this changing workplace landscape has created include:
- Lack of resources and time to have the hiring manager or remote employee travel for a face-to-face meeting;
- Requirement that the person completing Section 2 for Form I-9 be physically present with the new hire;
- Employer retention of liability even when designating an authorized representative;
- Document retention for E-Verify employers; and
- Secure and compliant access to employer’s electronic I-9 management system.
Best Practices to Ensure Form I-9 Compliance
When it is not feasible for the employer themselves to physically inspect the documents with the new hire, there are options for legal completion. USCIS has said it is acceptable for an employer to designate a completer of Section 2 on the employer’s behalf. That completer must sign as the employer’s authorized representative with the employer’s name. This can be confusing, for example, if an employer is using a completer network and that completer lists the name of the network, rather than the employer’s name in completing Section 2. The employer cannot go back later and sign the form as the employer because the same person who examines the documents with the new hire must complete and sign Section 2.
Employers should exercise caution in selecting completer networks to ensure proper training and support by the networks. For example, notaries have been activated by some I-9 vendors as trusted completers; however, notaries cannot act in their capacity as notaries and attach their stamp or seal to the Form I-9 in lieu of a signature. Notaries completing Section 2 are doing so as individuals and not in their official role as a notary. In fact, in late 2014, California decided that notaries are not qualified to complete I-9s and must go through specific and bonded processes to become registered as an immigration consultant in the state. Inexperienced and untrained notaries may feel compelled to attach their stamp or seal, rather than signing Section 2. An unsigned Section 2 creates exposure for the employer, as the notary stamp is not acceptable for completion of Section 2.
However, in the event that an employer decides to designate trusted completers for Section 2, there are some best practices to follow for remote completion of Form I-9, including:
- Develop a network of trusted agents in key cities suitable to your hiring needs and who will act as your authorized representative.
- Ensure that you have advance warning of remote new hires in order to meet the three-day rule for I-9 and E-Verify, if the latter is applicable.
- Screen members of your network (and train if necessary) to ensure they understand how the Form I-9 must be completed when they are acting as your representative.
- Adopt electronic processing of the Form I-9 and E-Verify to improve accuracy, efficiency, and consistency. Electronic management also allows integration with automated onboarding and talent management systems.
- For employers who have automated their Form I-9 completion process, ensure that your designated completers have secure access 24/7 to complete the forms, and that the audit trail, verified signature capture, and storage and retention are secure and compliant.
- Prepare a standard operating procedure (SOP) for completion of the Form I-9 and E-Verify. The SOP should include instructions to both the authorized representative and the new hire. The SOP demonstrates reasonable steps to ensure compliance with immigration laws.
As the remote workforce continues to grow, more companies will find themselves challenged with hiring and onboarding their employees in compliance with all I-9 requirements. To ensure an effective and compliant approach, it is necessary for employers to understand their responsibilities regarding Form I-9 completion, and how the process can be evolved to account for their remote employees. By adopting the best practice strategies, companies can onboard their newest hires appropriately—regardless of where in the country the new hires are located.
Angela Lockman is vice president of Equifax Workforce Solutions.