I-9 Form

I-9 Form: Notaries Beware!
ASN Hot Tip, September 2010—UPDATED AUGUST 2024

NOTE:  This article contemplates examination of physical documents, only, for purposes of a Form I-9. See Homeland Security (U.S. Immigration and Customs Enforcement) Rule 8 CFR Part 274a for information on alternatives to examination of physical documents.

Notaries asked to assist in the completion of Form I-9, Employment Eligibility and Verification, beware: the uninitiated can easily be led into an unauthorized “notarization” or worse, notarization of one’s own signature. What you don’t understand about the Form I-9 and related documents can hurt you!

What is the Form I-9?
United States Citizenship and Immigration Services (USCIS; Department of Homeland Security) requires all employers to verify and document the employment eligibility and identity of employees (citizens and non-citizens). Form I-9, Employment Eligibility Verification, is used for this purpose.

In this form, the employee provides certain personal information and attests to citizenship or immigration status. The verifying employer certifies performance of an in-person examination of the employee’s identification documents. The employer also certifies that the employee began work on a particular day and that “to the best of my knowledge” the employee is authorized to work in the United States.

Employer’s Authorized Representative
Often, and for a variety of reasons, the employer and employee are not able to meet in-person for execution of the Form I-9. When necessary, an employer may authorize a third party to act as its Authorized Representative. This third party must perform all actions required of the employer in the Form I-9 process, and complete Section 2 of the form—the Employer Review and Verification, and the Certification statement.

An employer may designate anyone it chooses to be an Authorized Representative for execution of a Form I-9. Given their broad availability and experience in satisfactorily identifying their clients, notaries are among those seen as a logical choice to serve in this capacity.

Form I-9 Review and Verification: Not a “Notarization”!
Here’s where the issue becomes dangerous for uninformed 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 a  notarial act of any kind, or an imprint of the notary’s official stamp/seal, for either the employee’s execution of the document or the Authorized Representative’s.

Still worse, employers frequently ask notaries serving as their Authorized Representative to complete additional forms that exceed the instructions provided by USCIS for the Form I-9. Typically, these forms have the notary/Authorized Representative attesting to various statements (“I attest that I am a Notary Public in good standing”; “I attest that I agree to act as Authorized Representative for ______”; etc.), then signing and sealing the same statement. This is a clear act of notarizing one’s own signature, which is expressly prohibited in all states.

Realize that if you agree to serve as an employer’s Authorized Representative for purposes of a Form I-9, you are NOT serving as a notary in any capacity. The Form I-9 does NOT require a notarial act, therefore you must NOT affix your notarial seal impression on it. You are signing the form solely in the capacity of Authorized Representative of the verifying employer.

Since Authorized Representatives are designated by the verifying employer, we also feel that ideally, such designation should come to you straight from the verifying employer, through direct verbal or written communications. It is less than ideal for the employee who is the subject of the Form I-9 to come to you because they have been “told to find a notary.” Bottom line: if you have any doubts at all that you have been designated by the verifying employer to serve as an Authorized Representative, then decline to perform the service.

California Notaries, Please Take Note
The Office of the California Secretary of State advises that California notaries public who are not ALSO qualified and bonded as immigration consultants* may not act as an Authorized Representative on a Form I-9. The Office considers the Form I-9 to be an immigration form. As noted in California Government Code, Section 8223(c), notaries public who are not also immigration consultants under California law are prohibited from entering data on an immigration form or otherwise performing the services of an immigration consultant.
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*Pursuant to California Government Code Title 2, Division 1, Chapter 3, Section 8223(c).

ASN’s Recommendations
To protect yourself and avoid pitfalls such as performing non-authorized “notarial” acts or notarizing your own signature, consider these recommendations.

1. Always remember that anyone can be designated as an Authorized Representative for completion of a Form I-9. Notaries are sought out because they seem well-suited to perform an Authorized Representative’s tasks, not because the Form I-9 requires a notarial act (it does not).
2. The verifying employer should designate you as its Authorized Representative through direct verbal or written communications.
   
3. When signing the Certification statement on the Form I-9, realize that you are signing under penalty of perjury… don’t sign unless every word of that statement is true. (If the employee’s date of hire is blank or unavailable, then you must not perform the Authorized Representative service or sign the Certification.) Your true capacity (title) would be “Authorized Representative,” not “Notary Public.”
4. Decline to serve as an Authorized Representative if you are asked to:

• Sign/seal the Form I-9 in your capacity as a notary;
• Affix your notary seal anywhere on the Form I-9;
• Complete a written statement of any kind that you are then expected to “notarize” yourself;
• Make any certifications as “Notary Public.”
  
• Provide Authorized Representative services when the date of hire is blank or unavailable.

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