Remote Workers and the I-9 Process

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

November 8, 2018

The number of employees working virtually from just about anywhere is expected to continue to increase.  Employees these days can work at home, Starbucks, or even in a park or at the beach.  Many challenges arise from communicating across time zones, and some companies require employees to report to the physical office place from time-to-time.  However, due to the nature of some businesses as well as technological advances, employees may be located in another state or across the country from their employers.  There are certainly employees whom employers have only seen, at most, through Skype or videoconferencing.  Still, employers must have valid and complete Form I-9s for all employees.

Employee Must Be Physically Present When Documents Examined

Within three business days after an employee’s first day of employment, the employee must present to the employer an original document or documents that show their identity and employment authorization.  The employer’s document examiner must be physically present with the employee.  That means that as of now, it is not permissible to complete the I-9 via email or video.  The employer’s representative must be present with the employee when reviewing the document.

Authorized Representative Can Act on Employer’s Behalf

Employers may designate an authorized representative to fill out Forms I-9 on behalf of the company, including personnel officers, foremen, and agents.  If there’s no company office anywhere near your remote worker, an employer may designate a third party, such as a notary public, to act as the authorized representative.  The Department of Homeland Security does not require an employer to have a specific agreement with the authorized representative for Form I-9 purposes.  After an employer finds someone to handle its I-9s, it has to make sure that the forms are completed properly and on time to avoid potential penalties or fines. If an authorized representative fills out a Form I-9 on an employer’s behalf, the employer is still liable for any violations in connection with the form or the verification process.  Employers should review remotely-completed I-9s to make sure that correct documents were accepted and that no information is missing.

Skoler Abbott has contacts in just about every jurisdiction to assist you with completing the I-9 process for your out-of-state employees, performing I-9 audits, and responding to ICE audits.