All employers must verify the identity and employment authorization of each person working in the United States. The USCIS Form 1-9, Employment Eligibility Authorization, is how employers verify their staff. What is an I-9 form, and what are the requirements for remote workers?
An I-9 form applies to both citizens and non-citizens. It is the government’s method of ensuring that every employee is authorized to work. It also collects information from the employee that verifies their identity and employment authorization.
An I-9 form is completed once a person has been offered a job and cannot be used as a prerequisite for a job offer.
Employees are responsible for ensuring that the information provided appears reasonably genuine and related to the employee. They must retain the form for a designated period and make it available for authorized government officers to inspect. All employers must have a completed I-9 form on file for each person on their payroll who is required to complete the form.
Employees are responsible for completing the first section of the form. The employer then inspects the identification documents and completes the second section. While employees are responsible for Section 1, it’s ultimately the employer’s job to ensure it is completed correctly.
As a remote employee, you must fill in your name, including other names. You have to share your address and date of birth. There are voluntary fields, including email addresses and telephone numbers. There is a field for social security numbers which is voluntary unless the employer participates in E-verify.
It’s important to know that if your employer participates in E-verify, which is common with remote work, you don’t need to provide the actual social security card. All that is required is the social security number, unless you are using the card as a form of identification as well.
Employers are required to inspect identification documents provided by the employee physically. The employee gets to choose the documents from a list of acceptable documentation. The documents have to be original and inspected in person.
There are 25 documents that can be used to establish a worker’s identity and eligibility for employment, including passports, driver’s licenses, ID cards, school ID cards with photographs, and social security cards.
This means that photos and photocopies of identification documentation are not acceptable for verification. Employers who don’t follow the rules for the I-9 and its verification face potentially hefty fines and even criminal penalties.
Fines for hiring and continuing to employ unauthorized workers range from $573 to over $20,000 per employee. The violations can be anything from failing to complete the form to participating in document fraud. There are also substantive violations, including failing to produce a form for inspection. Those fines range from $230 to $2292.
Because there are documents that need to be verified as part of the I-9 process, things can get complicated for remote workers. While the employer must inspect the application and ensure it’s filled out correctly, only the employee has the identification documents needed for the form.
Of course, if an employee is working remotely, but there is an office or location of the business nearby, they could visit a hiring or HR manager with the documents in hand. However, more often than not, this is not the case. Employers hiring remote workers typically don’t get any break from the strict requirements of the 1-9 — they are expected to verify original documents in person within three business days of the start date.
Historically, using video technology like a Zoom meeting to review the document has not been acceptable. Before the COVID-19 pandemic, the solution was to complete the 1-9 form using a trusted agent or representative. That can include personnel officers, agents, and notary publics. That authorized representative still needs to physically examine identification documents with the employee present.
The authorized representative can be anyone unless there is a state rule. The Department of Homeland Security doesn’t stipulate the subject, meaning they generally do not need to be affiliated with the company and can’t be barred from the task because of affiliation with an employee.
This person describes the identification documents they have reviewed, and they sign a certification as the employer’s authorized representative. It’s important that HR or the employer give clear instructions on how they want the form completed and what they want to be reviewed.
Physical inspection of identification documents was clearly always a problematic issue for remote employees and employers. With the COVID-19 pandemic underway, it became even more of a problem, but employers still needed to hire people to work. At the start of the pandemic, Immigration and Customs Enforcement, which enforces I-9 forms, issued some new regulations to ease the problem.
Under the new, temporary COVID-19 rules, employers can defer physical inspection in some scenarios. Employees who work exclusively in a remote setting due to COVID-19 precautions are exempt until they undertake non-remote employment on a regular, consistent or predictable basis. Or, they are exempt until the extension of these flexibilities is terminated — whichever is earlier.
Employers still need to inspect the documents but can do so remotely. That means using video, fax, or email, with retained copies of the documentation.
This deferral only applies to employers and workplaces operating remotely. If any employees are physically present at a work location, there are no exceptions.
When normal operations resume at a workplace, the new employee must report within three business days and present identification documents for inspection. The employer must physically inspect these documents as usual and annotate the reason for the delay on the I-9 form.
While the flexibility was first announced in March 2020, several announcements and updates have been made during the pandemic. Presently, the flexibilities in their current form apply until July 31, 2023.
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*This blog does not constitute solicitation or provision of legal advice and does not establish an attorney-client relationship. This blog should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction.*