How to Complete I-9s for Remote Employees

The Form I-9 (I-9) is used to verify a new hire's identity and work authorization. Employers must ensure that each employee properly completes the I-9 at the time of hire. Completing an I-9 can be more complicated for employees who are working remotely, especially now that a U.S. Department of Homeland Security (DHS) temporary policy that allowed virtual inspection of documentation in some cases is about to expire on July 31. 

If an employer is unable to physically meet with the worker to review original I-9 documents, then federal law allows employers to use an authorized representative to fulfil this function on the employer’s behalf.  The following is a checklist for completing the I-9 for remote workers after the temporary policy ends and when using an authorized representative.

·      Designate an experienced authorized representative. The authorized representative is commonly an attorney or notary public. Under federal rules, an authorized representative can technically be any person the employer designates to complete and sign the I-9 on its behalf. However, state law may restrict who can complete the I-9 on the employer’s behalf. For example, California limits such services to licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under state law.

·      Ensure the authorized representative understands the requirements. When completing Section 2 (or section three if applicable), the authorized representative must examine (with the employee physically present) each original document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. The authorized representative must then sign and date the I-9 on the employer’s behalf. A sample form to provide these instructions to an authorized representative is included below.  

Note: The DHS has provided instructions on how to annotate the I-9 when performing the in-person physical document inspection for those individuals who have only received a virtual/remote examination under the temporary policy expiring on July 31, 2023. If you have remote employees impacted by the end of the temporary policy, make sure your authorized representative understands these instructions and completes the in-person physical document inspection for these employees by August 30, 2023.

·      Review the I-9 for any errors after completion by the authorized representative. Keep in mind that the employer is ultimately responsible for any I-9 violations. Therefore, if you, as the employer, designate a representative, then you should ensure that they have experience in completing the I-9 and you should review the I-9 completed by the designated representative to confirm it is error-free.

·      Watch for developments. The DHS has proposed a rule that would create a framework under which the DHS Secretary could authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could be implemented as part of a pilot program, or upon the Secretary's determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services or a national emergency declared by the President. A final rule is expected later this year.  We will continue to keep you informed of any future developments related to the proposed rule for virtual/remote inspections.