I often receive questions from employers seeking more information about employment verification for remote employees. I am writing this article for those with similar questions and in need of an answer. That said, it is essential to note that each case is unique, and employers are always better off consulting counsel to ensure full compliance with Form I-9 requirements, especially given the evolving rules and regulations. My recommendation is that employers constantly monitor official websites like USCIS and E-Verify for the latest guidance and updates.
Readers, therefore, understand that the information provided here is for general guidance only and is not intended as legal advice.
The U.S. Citizenship and Immigration Services (“USCIS”) has established guidelines for employers to complete the Form I-9, Employment Eligibility Verification, for remote employees. Employers enrolled in E-Verify can now use an optional alternative procedure for I-9 verification of remote employees, which involves remote document examination and live video interaction.
This alternative is available to employers enrolled in E-Verify who meet certain requirements, including being in “good standing” with the E-Verify program. For example, because the use of E-Verify in Florida is mandatory, this alternative is generally available to employers here. Employers must check for the specific states where they are operating.
The following are the main general requirements for the process:
- Employer Requirements
- The employer must be enrolled in and actively participating in E-Verify and in “Good Standing.” Being in good standing with E-Verify means they haven’t received a notice of termination from the program and are regularly using it for new hires.
- Remote Document Examination: Employer must examine clear copies (front and back, if two-sided) of the documents provided by the employee from the I-9 List of Acceptable Documents. Ensure the documents appear genuine and relate to the employee.
- Form I-9 Completion Deadline: Section 1 must be completed by the employee no later than the first day of employment, while the employer (or authorized representative) has three business days to complete Section 2. If employment is less than three days, Section 2 must be completed no later than the first day of employment.
- Live Video Interaction: Conduct live video interaction with the employees where they present the original, unexpired documents. The employee must transmit copies of the documents to the employer beforehand. The employer must have a way to conduct live video meetings with employees and a method for employees to securely transmit copies of their documents.
- Consistency: If the employer chooses to use the remote verification option, they must apply it consistently for all employees at that hiring site.
- Authorized Representatives
- Designation: Employers can designate an authorized representative (who can be any person) to complete Section 2 of Form I-9 on their behalf. However, states such as California may have certain specific restrictions on who can serve as an “authorized representative”, which could make a difference in the implementation of the process.
- Employee Steps
- Transmit Documents: The employee must first transmit clear, legible copies of their required I-9 documentation (both front and back if applicable) to the employer.
- Live Video Interaction: The employee must participate in a live video interaction with the employer, where they present the same documents that were previously transmitted.
- Verify Identity: The employer will verify that the documents reasonably appear to be genuine and relate to the individual presenting them during the video call.
- Complete Form I-9: The employer will then complete Section 2 of the Form I-9, indicating that the alternative procedure was used for remote document examination.
- Retain Documentation: The employer must retain clear and legible copies of all documentation, including scans of both sides. Maintain the completed Form I-9 and copies of supporting documents for the required retention period (three (3) years after the date of hire or one (1) year after employment ends, whichever is later). Forms should be readily available for inspection by authorized government officials.
- Key Considerations
- Not Mandatory: Remote verification is an optional alternative procedure, and employers can still choose to conduct in-person document examinations.
- Discrimination Concerns: Employers should apply the remote verification procedure consistently to avoid potential discrimination claims.
- E-Verify Training: Employers should ensure that they and their authorized representatives have completed the required E-Verify training on fraud awareness and anti-discrimination.
- Penalties: Failing to comply with I-9 regulations can result in significant civil and criminal penalties, including fines and imprisonment. Form I-9 violations can range from paperwork errors to knowingly hiring or continuing to employ unauthorized workers.