As regular readers may remember, I lost my job a few months ago. I’m happy to report that I’ve started a new job, although I’m not saying where, because I don’t want to give anyone the incorrect impression that anything here at Windypundit is being said on behalf of my employer, who have wisely not authorized me to speak for them.
I do want to talk about one part of the process of starting the job, however.
Despite the fact that I’m a U.S. citizen, I was still required to fill out an I-9 form. That’s the form the U.S. Citizenship and Immigration Services (USCIS) requires to document my employer’s verification of my eligibility for employment in the United States. USCIS is part of the Department of Homeland Security, and one of their jobs is to make sure that ineligible foreigners aren’t working here. Rather than doing their job, however, they’ve drafted the Human Resources departments of every company in the country to do the job for them.
I can almost hear some of you asking, “But how else could they make sure that foreigners aren’t working illegally?” I don’t know, but I’m old enough to remember when this law was passed in 1986, so the country got along just fine for over 200 years without requiring citizens to “show our papers” to earn a living.
Those papers have to prove two things: My identity, and my eligibility to work. Some documents, like a U.S. passport, prove both things. My passport has expired, so I had to use two separate documents. The identity document was easy, since I have a valid Illinois driver’s license, but proving my eligibility to work was more difficult. A Social Security card would do the trick, but since I had recently asked the Social Security Administration for a new one, and they advise against carrying it, I had no idea where I had put it. The only other suitable document would by a copy of my birth certificate, but I had no idea where I had one of those either.
All of this is, of course, completely unnecessary in the internet age. I have an account at the Social Security Administration website, which is protected by a two-factor authentication system. In our modern internet era, it would be easy for my new employer (or more likely, a third-party service provider) to ask me to have the Social Security website digitally sign a claim authenticating my work eligibility. It’s the same cryptographic transaction as using one website to login to another website (e.g. “login with Facebook”), and it happens a billion times a day on the internet. The only difference would be that instead of authenticating through Facebook (or Twitter or Google or LinkedIn), this would be authenticated by the ssa.gov website.
You may be wondering about security. Is that website is secure enough to be acceptable for checking employment eligibility? Well, since I used that website to order my new Social Security card, which is considered an acceptable document, it’s clearly secure enough.
I eventually found my Social Security card, so I filled out my part of the I-9 form and made copies of my driver’s license and Social Security card to send in to my employer. But before I could do that, I had to have the I-9 notarized. (Or so I thought.)
My bank has a branch right near the house, so I drove over there and asked if their notary could process an I-9 form. They said they weren’t allowed to, but that I should try an independent notary, like a UPS store. But at the UPS store I got a flat “no” from the clerk. He said I-9 forms were a problem for everyone. That made me think I should probably go home and do some research before trying again.
You will probably not be surprised to hear that it turns out to be a mess.
The way notarization normally works is that you sign a document in front of a notary, who then stamps the document to authenticate your signature. It’s basically identity verification by a third party: The notary will have seen your proof of identity — your driver’s license, for example — and they’ll make a record in a journal indicating how they verified your identity, including details such as your driver’s license number. The notary will then fill in their own information in the notarization portion of the document and affix their stamp, thus ensuring the receiver has enough information to verify the notarization.
Because notaries are licensed by the government and they are familiar with handling legal documents, they often take on other roles in legal matters. For example, if you refinance your home (at least here in Illinois) the person who handles the final loan closing will likely be a notary. Some of them also have training as paralegals.
Now let’s back up and discuss why I had to take that I-9 to a notary. The I-9 form documents that the employer verified the employee’s eligibility for employment in the United States. As such, it’s supposed to be filled out by the employee on the front, and then the employer is supposed to fill out the back, documenting the credentials they used (driver’s license and Social Security card in my case) to verify the employee’s identity and employment eligibility.
The thing is, I’m working from home. My employer is 1000 miles away. I can’t just drop by the Human Resources office. But the USCIS folks are very strict about this. A video conference where I show my ID to my employer is not good enough. I have to present myself in person. And a simple notarization of my signature is not enough, because the back of the I-9 must be filled out and signed by the employer’s authorized representative. There’s no way around this.
[…] remote hires must still complete section 1 of the form and the employer’s agent or representative must complete section 2 in its entirety, including a tactile inspection of the documents presented by the employee.
However, there seems to be a loophole, because the law doesn’t specify who an employer can authorize to represent them.
An authorized representative or authorized agent can technically be anyone. You can borrow an HR rep from a company near your remote hire, use an attorney or even a librarian.
U.S. Citizenship and Immigration Services (USCIS) does not require these authorized agents to have any specific qualifications.
Many employers have therefore hit on the idea of using notaries to complete the documents, since it sounds similar to other kinds of things notaries do. Unfortunately, that’s not quite the case:
“The guidance often given in these situations is to have the remote employee use a local notary public to notarize the Form I-9,” said Kayla Dineen, SHRM-CP, project implementation manager at Helios HR, an HR consulting firm based in Reston, Va. “In many cases, this process doesn’t work out as intended because a notary public is not sure of their responsibilities or the process in completing the form. I’ve had a number of clients share that employees came back and said the notary republic refused to help them.”
Exactly. In fact, the American Society of Notaries warns notaries against the process of filling out I-9 forms:
Here’s where the issue becomes dangerous for unsuspecting notaries. Many employers ask notaries serving as their Authorized Representative to affix their notarial seal to the certification section of the Form I-9. Never do this: the Form I-9 does not require an authorized notarial act of any kind, for either the employee’s execution of the document or the Authorized Representative’s.
That’s a key point: The notary is not doing anything that requires the use of their notarial powers. Their role is basically to attest that they have examined my documents in person and sign their name to that. Consequently, it would be a mistake to notarize the document as well, because they would be notarizing their own signature, which is forbidden by conflict of interest rules. Even worse, California considers an I-9 to be an immigration form (even when filed by non-immigrants like me), and the State of California requires anyone acting as an Authorized Representative to be licensed as an Immigration Consultant. Notaries who lack such a license could be fined.
Because of that kind of legal thicket, handling an I-9 form is risky for a notary, and many of them won’t do it.
Now that I understood the problem, I called an independent notary who agreed to fill out the forms. I suspect he didn’t really understand the issues when he agreed, but I explained it to him as clearly as I could and walked him through the process of filling out the paperwork (and not notarizing anything).
Between preparing the I-9 documentation, finding my social security card, and dealing with the notarization issue, it probably took 5 hours of my time to produce an acceptable two-page I-9 form. And I’m a natural-born U.S. citizen, meaning this was basically the best-case scenario.
In short, fuck the Department of Homeland Security.