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Fifth Circuit Reverses $226,000 Form I-9 Fine Against Employer

Recently, the Fifth Circuit Court of Appeals reversed a $226,000 fine imposed by the government on a staffing company. What was the staffing company’s alleged transgression?  A government audit showed the individuals which completed Section 2 of Form I-9 (the Employer section of the form) were only reviewing copies of the newly-hired employees’ employment verification documents.  The originals were collected in a different location and copies were then sent to those responsible for completing Section 2.  Such a seemingly minor transgression almost proved to be a costly mistake for the company.

Employer Solutions Staffing Group II, L.L.C. v. Office of the Chief Administrative Hearing Officer, et. al. involved a Minnesota staffing company which had an agreement to provide workers for a manufacturing plant in Texas and subcontracted with an El Paso company to help it do so.  The El Paso company hired the workers, inspected their documents, and had them complete Section 1 of Form I-9.  It then sent photocopies of the documents and partially completed Form I-9s to Minnesota.  There, employees of the staffing company inspected the photocopies and completed Section 2 of Form I-9, attesting to the fact they had examined the documents and believed them to be genuine.  An audit by Immigration and Customs Enforcement, a part of the Department of Homeland Security, determined this was improper and the company was ultimately fined $226,270 for failing to properly complete Section 2 of Form I-9 for 242 employees.

On appeal, the Court overturned the fine. It analyzed the relevant portions of the Immigration and Nationality Act (the “INA”).  The Court ultimately determined this kind of “corporate attestation” was not prohibited given the language of the INA and the version of Form I-9 in force at the time of the decision.

This decision does not have much precedential value because the government has revised Form I-9 since these alleged violations occurred. The current version of Form I-9 explicitly makes clear that remote corporate attestation is not allowed.  Therefore, while this company avoided this hefty fine, you may not be so lucky next time.  It is crucial to ensure your Form I-9 practices are in compliance with the law and government regulations.  To do this, you may want to conduct an internal audit of your Form I-9 practices.  Of course, doing so comes with its own risks and issues, so you should consult with competent employment counsel before taking such a step.

Brody and Associates regularly provides counsel on ensuring compliance with the I-9 regulations, as well as on all employee-related matters. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.