HR Hotline: Can We Delegate Form I-9 Responsibilities to a Third Party?

HR & Safety

Q: We occasionally have to hire employees who reside in a distant community and will be working remotely. If we don’t have a manager in the employee’s area to review documents and complete Immigration Form I-9, can we delegate that responsibility to someone else not employed by our company?

Call Mark Soycher at the HR Hotline: 860.244.1900.

Call Mark Soycher at the HR Hotline: 860.244.1900.

A: All U.S. employers are required to verify the identity and employment authorization of each person they hire. For each employee, they must complete and retain a federal Form I-9, Employment Eligibility Verification, indicating that they have:

  • Examined the employment eligibility and identity documents presented by the applicant or new hire
  • Determined whether the documents reasonably appear to be genuine and relate to the individual

By signing the form, employers attest under penalty of perjury that they have completed these tasks.
The Department of Homeland Security’s U.S. Immigration and Citizenship Services’ Handbook for Employers, Instructions for Completing Form I-9 clearly states that it is permissible to designate someone, such as a notary public, to perform these tasks on your behalf.
It’s important, however, to have a clear understanding of delegated responsibility and realize that if a problem arises, you as the employer are liable for any violations in connection with the form or verification process. You are also liable if an employee later turns out to be illegally employed.
If you designate an authorized representative to view a new hire’s employment authorization and identity documents, that person must carry out full Form I-9 responsibilities, including physically examining original documents in the presence of the applicant. In addition, the representative must sign Section 2 of Form I-9 as an attestation to their having examined the new hire’s documents and that in their judgment, such documents reasonably appear to be genuine and relate to the person presenting them.
You cannot contract for a third party to view the new hire’s documents while you complete Section 2 of Form I-9 yourself. Nor is it permissible for you to review copies (fax or scanned) of the documents as the basis for signing Section 2.
Recruiting and onboarding offsite workers is an area requiring careful adherence to the strict letter of Form I-9 procedure. For an unsettling saga of seeming good faith compliance efforts and aggressive government audit activity, click here. Although no ineligible workers were employed, the business in this case was liable for over $200,000 for multiple instances of failing to comply with the Form I-9 recordkeeping mandates.
An effective package for designating an authorized representative for completing new hires’ Form I-9 might include a copy of a blank Form I-9, a cover letter to the new hire with instructions on required documentation, how to complete Section 1 of the form, and how to contact the authorized representative who will complete the remainder of Form I-9.
You might also include an instruction letter to the authorized representative on how to complete the form.
In any event, the authorized representative should be someone you have worked with to ensure that the person is familiar with necessary documentation and procedures. Only in that way can you be certain that you will not end up liable for someone else’s mistakes.


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