In the last two weeks, we’ve covered how CW managers can work with staffing providers to ensure workers’ eligibility and I-9 compliance. Another area of concern is remote contingent workers that companies engage directly as part of their in-house temp pool.
As technology advances and the digital sharing economy grows across the US, more and more workers are opting to work from home or to work remotely. This poses a problem for employers who have an obligation to verify the identity and employment authorization of their employees by physically examining original documentation produced by an employee who must be physically present during the examination. It is not permitted to conduct the process of verification by webcam.
Timing is also as crucial as the process. Completion of the Form I-9, must be done within three business days of the first day of employment, or the first day of employment, if the employment is for less than three business days. The penalties for failing to complete the process within the time limits set include civil fines, criminal sanctions, debarment from government contracts and court orders for payment of back pay and/or hiring individuals discriminated against.
Section 1 of the Form I-9 requiring details of the employee — including name, address, date of birth and Social Security number — must be completed, in all cases, no later than the first day of employment but never before the employee has accepted a job offer. The employer then has a responsibility to examine evidence of identity and employment authorization within three business days of the employee’s first day of employment, and complete Section 2.
Employers are permitted to appoint an “authorized representative” to carry out the verification process but there is much confusion over whether this needs to be a notary public or not. The US Citizenship and Immigration Services website lists a notary public as one of the types of people who may be appointed as a representative and states the Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. It also makes the point that an employer remains liable for any violations in connection with the form or the verification process.
It is understandable that many employers prefer to use a notary public to act as their authorized representative; they are experienced in the authentication of documents, making them a legitimate resource to use as an authorized representative for checking documentation, conducting face-to-face interviews with remote employees and completing the I-9 form on your behalf. However, there is no requirement for the form to be notarized.
The National Notary Association advises notaries not to “notarize” the documents, as it is not a legal requirement for a notary to authorize a Form I-9. By this, the association means the notary should not be asked to use his or her seal and sign as a Notary Public. And the DHS advises companies that hire a notary public for this purpose: “The notary public is acting as an authorized representative of you, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.”
There is one exception: in the state of California, the activity of completing an I-9 verification is considered to be “immigration” services, for which the notary must be qualified and bonded. So unless they have these requirements they should refuse to undertake this activity.
The E-Verify system used by many employers across the US is an Internet-based system that compares information from the Form I-9 with government records to confirm that an employee is authorized to work in the United States. The system is both free to users and fast. However, it does not offer employers any alternative to a face-to-face verification.
While it is not a requirement to use a notary public to carry out the verification, many do market these services, but may be reluctant to perform the service unless they have full and accurate instructions or a copy of the email instructing the employee to go to a notary as their authorized representative, together with contact details for the employer in case of any problems.
Employers and staffing firms looking to hire remote workers should be clear about who they can ask to act as their authorized representative, and provide specific instructions to employees as to what they should be asking a notary public to do.
Alternatively, Brian E. Curtis, an attorney at Becker Meisel, advises clients to “digitize” the process, by use of compliance management tools in conjunction with an established compliance agent network. One such network is run by Equifax Workforce Solutions.
Here is some more useful information from USCIS.