Remote Hiring: What You Need To Know About Form I-9 Compliance
Best practices and tools for remote-hire compliance
Posted on 07-30-2019, Read Time: - Min
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The workforce has seen shifts in various traditional practices throughout this decade, notably among them the emergence of individuals working remotely more than ever before. Numerous factors drove—and continue to drive—this trend, particularly economic and technological developments, as well as employee needs and expectations in an increasingly virtual world.
Many employers also perceive this development to be beneficial from their vantage point: It allows them to cut day-to-day costs associated with in-house staff, better optimize their in-office programs and resources and help facilitate the implementation of more effective management procedures. Other appealing benefits of an increasingly remote workforce include the numerous efficiencies afforded to companies, including expansive access to qualified talent regardless of geographic restrictions.
By definition, remote hiring is the practice of hiring employees that work in an off-site location, or in the privacy of their own home. Sometimes, such workers do not ever physically enter their workplace, by virtue of working in another state, branch office or client site. Affording certain staff the privilege of working remotely has been shown to improve employee retention and morale, increase productivity and yield cost savings.
As such, companies in various industries—including staffing, health care, sports and entertainment, technology, consulting, sales and marketing—all appear to be on board with this trend. Data backs up this conclusion: Gallup's 2017 State of the American Workplace report found that 43% of U.S. employees worked from home at least some of the time, a 4% jump from 2012. Also, 31% of workers Gallup surveyed work remotely at least four days a week as of 2017—up 7 percent from the 24% figure seen in 2012.
Compliance for Remote Hires
Despite its aforementioned benefits, remote hiring also comes with several limitations. These drawbacks typically surface during the process of complying with U.S. Citizenship and Immigration Services (USCIS) Form I-9 employment verification requirements for remote employees. The process is sometimes considered convoluted and daunting, mostly as a result of confusion over one particular stipulation: By the letter of USCIS regulations—which are of considerably greater importance to the federal government now than just a few years ago—employees must be physically present while reviewing and completing Form I-9s and presenting related paperwork (original, unexpired documents from the List of Acceptable Documents which establish identification and work authorization).
The typical process is as follows:
The typical process is as follows:
- Employers are required to verify the identity and employment authorization of every new employee by completing Form I-9 within three business days of the new hire's first day of work.
- The employee must complete Section 1 of the Form no earlier than their acceptance of a job offer and no later than their first day of paid work.
- For Section 2 completion, the employee presents the employer’s representative with unexpired original documents to prove both identity and work authorization. USCIS divides these documents into three categories:--Side Note—not sure you want to name the documents, since there are many more than this. Unless you say something like “to name a few” or “etc.”
- List A documents (asserting identity and right to work): U.S. passports, permanent resident ("green") cards, Employee Authorization Document cards and foreign passports alongside Forms I-94, I-94A or I-551.
- List B (identity only): Driver's licenses, state or government IDs, Canada-issued driver's licenses, U.S. military IDs, school IDs with photographs and Native American tribal IDs.
- List C (right to work only): Unrestricted Social Security cards, birth certificates from U.S. government agencies or reports of birth abroad verified by the State Department, special employment authorization documents issued by Homeland Security.
- The employer then reviews these original, unexpired documents in the presence of the employee, and enters all of the pertinent information in Section 2.
Authorized Representatives and Notaries
In the case of remote employees, how is completing this verification process physically possible? USCIS-issued directions don't budge on the requirement that an individual's new employers (or their authorized representatives; more on that in a bit) review original documentation with the employee beside them. This presents an obvious challenge for employers of workers who plan to do their jobs at home or in other off-site locations.
The solution to this dilemma often lies in the hands of authorized representatives. Technically, several individuals can take on this responsibility: managers who will directly supervise the new hire, heads of HR departments, even a family member or neighbor of the new remote hire. The real issue is one of trust: employers bear the ultimate responsibility for the validity of all information on their Form I-9s. As a result, they may request that a notary public (not working in a notary capacity) or lawyer fulfill the role of authorized representative. Regardless of who it is, the representative must fill out and sign Section 2 of the Form I-9, and also physically examine any documents being presented by the new hire from the List of Acceptable Documents. The Form I-9 itself is not to be literally notarized; an individual's presence and sworn attestation are enough.
No matter what, don't forget that the employer ultimately accepts full responsibility as to the truth of the Form I-9, whether it was completed in their immediate presence or by an authorized representative hundreds (maybe even thousands!) of miles away. If Immigration and Customs Enforcement (ICE) comes calling with a Notice of Inspection (NOI) and a subsequent Form I-9 audit—which occurred more frequently than ever before in 2018, according to ICE's own data, with 5,981 audits taking place during the 2018 fiscal year—the onus of any penalties from any errors falls squarely on the business's leaders.
The solution to this dilemma often lies in the hands of authorized representatives. Technically, several individuals can take on this responsibility: managers who will directly supervise the new hire, heads of HR departments, even a family member or neighbor of the new remote hire. The real issue is one of trust: employers bear the ultimate responsibility for the validity of all information on their Form I-9s. As a result, they may request that a notary public (not working in a notary capacity) or lawyer fulfill the role of authorized representative. Regardless of who it is, the representative must fill out and sign Section 2 of the Form I-9, and also physically examine any documents being presented by the new hire from the List of Acceptable Documents. The Form I-9 itself is not to be literally notarized; an individual's presence and sworn attestation are enough.
No matter what, don't forget that the employer ultimately accepts full responsibility as to the truth of the Form I-9, whether it was completed in their immediate presence or by an authorized representative hundreds (maybe even thousands!) of miles away. If Immigration and Customs Enforcement (ICE) comes calling with a Notice of Inspection (NOI) and a subsequent Form I-9 audit—which occurred more frequently than ever before in 2018, according to ICE's own data, with 5,981 audits taking place during the 2018 fiscal year—the onus of any penalties from any errors falls squarely on the business's leaders.
Risks of Remote Hiring
The biggest risks that remote hiring can represent does not necessarily relate to the presence (or credentials) of an authorized representative. It's the lack of a set plan observed by all HR employees during the remote hiring process that so often ends up being a recipe for compliance-related trouble.
Opting for a shortcut instead of the processes that are proven to be effective may seem tempting at first, but the resulting problems aren't worth it: A single instance of document fraud to conceal an unauthorized foreign worker's identity—even if the fraud stemmed from neglect or non-malicious human error—elicits a minimum fine of $461, a $935 average and a maximum penalty of $3,695, according to the most recent updates to these laws in late January 2018, as published in the Federal Register on behalf of the Justice Department. For subsequent violations, fines can reach as high as $9,239, so the ultimate costs of multiple fines can reach hundreds of thousands of dollars—and beyond.
Consider this object-lesson: Not long ago, a Pennsylvania-based tree- and brush-clearing firm was held responsible for a whopping $95 million after amassing dozens of fines that stemmed from Form I-9 violations: they relied on numerous contractors to fill open labor roles on these forestry jobs, and through either neglect or willful disregard allowed these third-party recruiters to bring on immigrants unauthorized for work in the U.S.
While the company might not have hired such individuals directly overseeing the hiring, they still functioned as the primary employer with on-site contractors as their authorized representatives, who clearly didn't stick to USCIS document protocol. For a small- or medium-sized business, the fines likely won't be astronomical like that, but proportionally speaking it could easily become just as bad.
Opting for a shortcut instead of the processes that are proven to be effective may seem tempting at first, but the resulting problems aren't worth it: A single instance of document fraud to conceal an unauthorized foreign worker's identity—even if the fraud stemmed from neglect or non-malicious human error—elicits a minimum fine of $461, a $935 average and a maximum penalty of $3,695, according to the most recent updates to these laws in late January 2018, as published in the Federal Register on behalf of the Justice Department. For subsequent violations, fines can reach as high as $9,239, so the ultimate costs of multiple fines can reach hundreds of thousands of dollars—and beyond.
Consider this object-lesson: Not long ago, a Pennsylvania-based tree- and brush-clearing firm was held responsible for a whopping $95 million after amassing dozens of fines that stemmed from Form I-9 violations: they relied on numerous contractors to fill open labor roles on these forestry jobs, and through either neglect or willful disregard allowed these third-party recruiters to bring on immigrants unauthorized for work in the U.S.
While the company might not have hired such individuals directly overseeing the hiring, they still functioned as the primary employer with on-site contractors as their authorized representatives, who clearly didn't stick to USCIS document protocol. For a small- or medium-sized business, the fines likely won't be astronomical like that, but proportionally speaking it could easily become just as bad.
Common Mistakes to Avoid
The best offense against the hazards that can endanger proper Form I-9 compliance for remote employees is a strong defense—knowing exactly what not to do. Let's start with a few blunders that occur with far greater frequency than they should:
- Using video conferencing tools for the Form I-9 process: An employer speaking with a new off-site hire via video conferencing or chat tools cannot, under USCIS regulations, claim to have directly seen that employee's acceptable documents, and therefore cannot fill out Section 2 of the Form I-9 as they must. An authorized representative endorsed by the employer would have to be physically alongside the new hire to verify the documents' validity and complete the employer portion of the form.
- Accepting copies, emailed scans, faxes or other reproduced documents: No copy of an acceptable document is valid to certify a new hire's U.S. work authorization. In a remote-hire situation, an authorized representative physically viewing the documents and attesting to their validity is all that's required, so it would be redundant to send copies.
- Lacking standard procedures for Form I-9: If you don't have a set procedure for the initial steps of onboarding a new remote hire for your business, your risk of making a costly mistake is far greater.
- Using uncertain representatives: As noted earlier, there's no rule regarding an authorized representative needing to be a legal official, member of your company or holder of any other notable designation.
Best Practices and Tools For Remote-Hire Compliance
While there is no requirement to use a notary public, many companies in search of a consistent and reliable solution frequently confer the role of an authorized representative to these individuals. Oftentimes, there is a perception of credibility and trustworthiness associated with employers who elect to use a notary to complete Form I-9, as notaries are accustomed to reviewing critical, high-priority documents and bearing witness to signatures. Additionally, notaries are widely available nationwide and are generally easy to locate.
However, despite being the first-choice for employers seeking an authorized representative, obstacles arise when notaries refuse to sign and notarize a Form I-9 (usually due to state laws that prohibit them from signing and notarizing their own signatures, or assisting in the completion of specific types of documents, including Form I-9, even though they are not conducting this in a notary capacity). When this occurs, another authorized representative can be selected.
Once you establish authorized representatives, develop an ironclad set of standards that each individual must follow to the letter when performing duties on behalf of your business (and its new remote employees). These rules are not just for representatives and employers, but also workers themselves, dictating the order in which the Form I-9 will be completed remotely, attested to by the representative and verified by a company leader. It may also be prudent to draw up separate written contracts between your organization and any individuals serving as authorized representatives. Keep in mind employers are ultimately responsible for the Form I-9, regardless of who completes it.
That's quite a bit of procedure. Compliance with Form I-9 requirements is absolutely necessary, but one can't be blamed for seeking a way to make it more efficient—and that is exactly where I-9 Remote and the I-9 Advantage suite of Form I-9 services come in.
Fully functional across desktop, tablet or smartphone, I-9 Remote allows easy access to a national network of mobile-accessible notaries, I-9 agent centers and supports any chosen authorized representative. The service also boasts configurable options to be tailored to help with your specific organizational needs, permits efficient Form I-9 completion from any location to help expedite the remote hiring process.
However, despite being the first-choice for employers seeking an authorized representative, obstacles arise when notaries refuse to sign and notarize a Form I-9 (usually due to state laws that prohibit them from signing and notarizing their own signatures, or assisting in the completion of specific types of documents, including Form I-9, even though they are not conducting this in a notary capacity). When this occurs, another authorized representative can be selected.
Once you establish authorized representatives, develop an ironclad set of standards that each individual must follow to the letter when performing duties on behalf of your business (and its new remote employees). These rules are not just for representatives and employers, but also workers themselves, dictating the order in which the Form I-9 will be completed remotely, attested to by the representative and verified by a company leader. It may also be prudent to draw up separate written contracts between your organization and any individuals serving as authorized representatives. Keep in mind employers are ultimately responsible for the Form I-9, regardless of who completes it.
That's quite a bit of procedure. Compliance with Form I-9 requirements is absolutely necessary, but one can't be blamed for seeking a way to make it more efficient—and that is exactly where I-9 Remote and the I-9 Advantage suite of Form I-9 services come in.
Fully functional across desktop, tablet or smartphone, I-9 Remote allows easy access to a national network of mobile-accessible notaries, I-9 agent centers and supports any chosen authorized representative. The service also boasts configurable options to be tailored to help with your specific organizational needs, permits efficient Form I-9 completion from any location to help expedite the remote hiring process.
Author Bio
| Randa Hamade is the Director of Marketing at I-9 Advantage. Visit www.i9advantage.com Connect Randa Hamade |
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