California's Secretary of State recently clarified whether an employer may use a notary public as its authorized representative to complete the Form I-9 Employment Eligibility Verification.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA) into law to deter illegal immigration to the United States.  Among the chief provisions, IRCA added employer sanctions prohibiting employers from knowingly employing workers in the United States without work authorization.  To comply with IRCA, employers must verify the identity and employment authorization of each person it hires and document the verification process by completing a Form I-9. 

The employee is responsible for completing Section 1 of Form I-9 and for presenting a document or combination of acceptable documents that establish the person's identity and work authorization.  The employer in turn must inspect the document(s) presented by the employee and record in Section 2 certain information from these documents as evidence of the employee's identity and employment authorization.  Completion of Form I-9 seems straightforward, but there are complexities with which employers have struggled to deal while trying to maintain compliance.

One such complexity is understanding who the employer may designate to complete Form I-9.  As per guidance from the U.S. Citizenship and Immigration Services (USCIS), an employer or its authorized representative, including personnel officers, foremen, agents, or notaries public, may complete Form I-9.¹ 

However, employers that hire in the State of California should be aware of a very particular restriction on designating its authorized representative.  Specifically, in California, a notary public who is not also a qualified and bonded immigration consultant, may not complete Form I-9 even when acting in a non-notarial capacity.²

Littler Mendelson recently sought from California's Secretary of State clarification concerning this restriction.  In a written response, the Secretary of State's Notary Public & Special Filings Section stated as follows:

A notary public who is not also an immigration consultant may not do the verification tasks in connection with completing an I-9 form because this is activity prohibited by the broad language of Government Code section 8223(c), especially the last sentence and the concluding phrase "…may not enter data provided by a client on immigration forms or otherwise perform the services of an immigration consultant" (Emphasis added).³

Therefore, a notary public who holds himself out as or performs the services of an immigration consultant but is not properly bonded or qualified to do so violates California's Government Code Section 8223(c).⁴ 

Stating the rationale for this restriction, the Notary Public & Special Filings Section explained further:

I-9 is an immigration document in that it covers both citizens and noncitizens and also requires the employer or authorized representative to record and verify data.  The duties of an immigration consultant cover these tasks too.  Even if a notary public is functioning in a non-notarial capacity and does not use the phrase "notary public," completing the I-9 by someone who is a notary public and not an immigration consultant as well is prohibited.⁵

Therefore, employers that utilize the services of a notary public in California to complete a Form I-9 should be careful to select one that is also an immigration consultant. Ultimately, the employer is responsible for the accurate completion of Form I-9 whether it uses a designated agent or not.  Careful selection of a qualified agent is important in minimizing potential liability stemming from deficient or improper Form I-9 completion.