Under the Immigration Reform and Control Act (IRCA), every US employer must complete Form I-9 for each newly hired employee within the first few days of employment. The I-9 form process typically is completed at the employer's worksite during the employee's first three days after starting work. However, an employer may need an alternative method if the employer hires an employee who is located far from any of the employer's worksites, such as a sales employee who will work from her home. Then an employer may designate an agent to complete the Form I-9. The employer must select an agent wisely, as it is liable for IRCA violations flowing from the agent's errors and omissions.

Under IRCA, an employer must, within three days of the employee's hire date:

In addition, an employer may use an agent to reverify the employee's employment authorization by reviewing renewed or new employment authorization documents when the employee's original employment authorization documents are expiring in the Form I-9 Section 3.

When an employer designates an agent to fulfill its I-9 responsibilities, the agent stands in the shoes of the employer, but the employer retains all of the liability for the agent's missteps. An employer must identify an agent who is reliable and trustworthy. US Immigration and Customs Enforcement (ICE) continues to make worksite enforcement, particularly through I-9 audits and investigations, a priority (see ICE Fact Sheet: Worksite Enforcement). Furthermore, an employer that participates in E-Verify must rely on the agent's performance to timely complete their E-Verify case initiation.

In addition to the other steps an employer may take to ensure the integrity of its Form I-9 policies and procedures, an employer hiring remote employees should ensure the agent it deputizes for the I-9 process understands her responsibilities in completing Section 2 of the Form I-9. For example, the agent must:

The agent's responsibilities are the same regardless of whether the employer uses an electronic I-9 system or paper I-9 forms.

Practical Law has recently updated a resource to help employers that must designate an agent to complete the I-9 form for remote workers. Employers may use Standard Document, Form I-9 Agent Instructions For Remote Employees to provide instructions to remote employees and agents for the proper completion of Sections 1, 2 or 3 of the Form I-9 for the employer's remote employees. The Standard Document has integrated notes with important explanations and drafting tips.

For more information on completing the Form I-9, see Completing Form I-9 for Employees Checklist and Practice Note, Demonstrating the Right to Work in the United States.

The agent's failure to properly complete any required step in the process may subject the employer to IRCA liability, even if the employer identifies and manually corrects errors or omissions as soon as they receive or see the completed Form I-9. The balance between the short time frame to complete the I-9 and the requirement that the certification be completed by a party viewing original documents makes the agent the only party who can ensure that the Form I-9 is completed correctly. If it is completed incorrectly, an employer can only (and should) try to minimize the damage. For more information on potential liability, see IRCA Violations: Employer Liability Assessment Chart.