By Holly Jones, JD
In yesterday’s Advisor, BLR® Senior Legal Editor Holly Jones, JD, discussed some of the unique challenges and pitfalls surrounding completion of the I-9 form. Today Jones discusses the case of an employer that was nearly handed a huge fine—and some important I-9 takeaways for employers.
I Filled Out This Form and I Feel Fine(s)
When Employer Solutions Staffing Group (ESSG), a temporary staffing company located in Minnesota, needed to overcome the geographic gap to provide workers to an El Paso, Texas, client, ESSG adopted a sort of tandem verification process for its I-9 forms.
In 2010, ESSG subcontracted with another staffing company in El Paso to inspect new hires’ original verification documents. This company, serving as ESSG’s agent, would oversee the employees’ completion of their part of the I-9 form, review those employees’ chosen employment verification documents, make copies of approved documents, and then send these copies and the partially completed I-9 forms to ESSG’s Minnesota offices.
Upon receipt, the Minnesota staff would review the copies of the employment verification documents, then complete Section 2 of the I-9 form, attesting that they had examined the employees’ verification documents and found them to be valid.
In 2013, ESSG was audited by Immigration and Customs Enforcement (ICE) and was fined over $237,000 for this process. Specifically, ICE alleged that ESSG failed to properly verify 242 employees because the employee who signed the I-9 form was not the same person who inspected the documents. ICE found that ESSG had committed substantive paperwork violations for these workers and had violated the Immigration and Nationality Act (INA). ESSG appealed the fine and eventually was granted review by the 5th Circuit Court of Appeals.
The 5th Circuit, turning directly to the INA, noted that the Act specifies that a “person or entity” must attest that it has verified employee documents. What was unclear, then—and the somewhat technical question for the court—was whether this section of the INA requires solely “personal” attestation or also allows “corporate” attestation.
In other words, must the same ESSG representative who examined the documents also sign the form (personal attestation), or would the tandem review/attestation by multiple agents of ESSG be considered a single act by the same corporate entity (corporate attestation)?
To find the answer, the court looked to the letter of the INA, its regulations, prior decisions interpreting the statute, the relevant revision of the I-9 form itself, the I-9 instructions, and related enforcement actions. Throughout this in-depth review of the law and its supporting cast of characters, the court found there was enough ambiguity—or lack of guidance altogether—to relieve the employer of the penalties completely (Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016)).
The 5th Circuit did point out that in the years since ESSG’s initial alleged violation, the Department of Homeland Security (DHS) has clarified the I-9 instructions to note that “The person who examines the documents must be the same person who signs Section 2.” In fact, in the ESSG case, the court found this revision to the instructions to be evidence that the DHS had recognized that the prior language on the I-9 form was not clear.
So, employers using similar practices now would have a more difficult time arguing that the instructions (and DHS intent) are not clear. As noted above, the M-274 Handbook provides very clear guidance on the use of an agent to review documents for Form I-9.
Therefore, though this was a lucky break for this particular employer—and employers in the 5th Circuit who were fined for similar violations around the same time (and under the same ambiguous agency guidance) could be granted the same leniency for those actions—other employers should not try this tandem verification at home, now.
The best practice, rather, is for the individual who reviews the employee’s verification documents—whether a direct employee of your company or an agent such as a notary public or subcontracted hiring agency—to be the person to complete and sign Section 2 of the I-9 form.