I-9 Compliance in the Remote Hiring Era

The Remote I-9 Challenge

The I-9 verification process has always required in-person examination of original identity and work authorization documents. When the pandemic forced widespread remote hiring, DHS implemented temporary flexibilities allowing virtual document review. Those flexibilities ended, but in their place, DHS introduced a new permanent alternative procedure that allows certain employers to conduct remote document examination.

Understanding the current rules is essential for any employer hiring remote workers.

The Standard Rule

The default I-9 requirement remains unchanged: the employer or an authorized representative must physically examine the employee's original documents within three business days of the employee's first day of work. Photocopies, faxes, and electronic images are not acceptable substitutes for original documents in the standard process.

For remote employees, this traditionally meant either having the employee visit a company office, sending an HR representative to the employee's location, or designating an authorized representative near the employee (such as a notary public or another employer's HR department) to conduct the examination.

The Alternative Procedure

DHS finalized a rule allowing an alternative examination procedure for employers enrolled in E-Verify who are in good standing. Under this procedure:

• Employers may examine I-9 documents remotely via video conference
• The employee must present original documents during a live video interaction (not a recorded video)
• The employer must receive a copy (front and back) of all documents within three business days
• The employer must retain the copies
• The employer must conduct the video examination within three business days of the employee's start date
• The I-9 form must be annotated to indicate the alternative procedure was used

This procedure is available only to employers enrolled in E-Verify. Employers not enrolled in E-Verify must continue to use the standard in-person examination process.

E-Verify Enrollment

If you are not enrolled in E-Verify and want to use the alternative procedure, enrollment is straightforward through the E-Verify website. However, E-Verify comes with its own compliance obligations:

• You must create an E-Verify case for every new hire within three business days of the employee's start date
• You must follow specific procedures when E-Verify returns a tentative non-confirmation
• You cannot use E-Verify to pre-screen applicants or selectively verify only certain employees
• You must display the E-Verify participation poster

Some states require E-Verify enrollment for certain or all employers. Check your state requirements.

Authorized Representatives

For employers not using the alternative procedure, the authorized representative option remains the most practical solution for remote hires. An authorized representative is any person you designate to complete Section 2 of the I-9 on your behalf. They do not need any special qualifications.

Common authorized representative options include:

• An employee at a company office near the new hire
• A notary public (though they act as your representative, not in their notary capacity)
• Another employer's HR professional willing to assist
• A staffing agency or service provider

You are responsible for the actions of your authorized representative. If they make errors on the I-9, the liability is yours. Provide clear instructions and ideally a quick-reference guide to anyone serving as your representative.

Best Practices

1. Establish a consistent process. Whether you use the alternative procedure, authorized representatives, or a combination, document your process and apply it consistently to all new hires.

2. Do not delay. The three-business-day deadline is firm. Late I-9 completion is a common audit finding and can result in fines, currently $252 to $2,507 per violation for first offenses.

3. Train your team. Everyone involved in the I-9 process must understand acceptable documents, how to identify potentially fraudulent documents, and anti-discrimination requirements. You cannot request specific documents or reject valid documents because they look unfamiliar.

4. Audit your existing I-9s. Conduct an internal I-9 audit to identify and correct errors in your existing files. Self-audits demonstrate good faith and give you the opportunity to fix problems before an ICE audit finds them.

5. Retain I-9s properly. Keep completed I-9 forms for three years after the date of hire or one year after the date of termination, whichever is later. Store them separately from personnel files for easier production during an audit.

Remote hiring is now a permanent feature of the employment landscape. Your I-9 process must be equally permanent and equally rigorous regardless of where your employees sit.