On January 20, 2015, the US Department of Justice Executive Office for Immigration Review handed down its decision in US v. Employer Solutions Staffing Group II, LLC, upholding stiff penalties imposed by Immigration and Customs Enforcement (ICE) on an employer for technical I-9 violations. 

Employer Solutions Staffing Group II, LLC (ESSG) is a staffing agency that supplies temporary/outsourced employees to its clients, including Larsen Manufacturing Co. of El Paso, Texas.  In 2011, ICE served Larsen with a Notice of Inspection of its I-9 files.  Larsen referred ICE to ESSG as the actual employer of Larsen’s workforce.  After the audit, ICE did not find any unauthorized workers in ESSG’s workforce.  However ICE found 243 violations of the employment verification provisions of the Immigration and Nationality Act (INA) and proposed a civil money penalty of $935.00 per violation and costs of $981.75, for a total of $227,251.75.  ESSG sought review of ICE’s findings from the US Department of Justice.

The INA requires newly hired employees to complete Section 1 of the I-9 form and supply employers with evidence that they are authorized to work in the United States.  The INA also requires employers to review the original documents submitted by the employee and then complete and sign Section 2 of the form. 

In this case, Larsen handled the I-9 process for the ESSG employees it selected. Larsen presented the employee with the I-9 form and reviewed the original documents presented by the employee.  Larsen then forwarded the I-9 form as completed by the employee along with a copy of the employee’s documents to ESSG in Eden Prairie, Minnesota.  An ESSG employee would then complete and sign Section 2 of the I-9 form. 

On review to the Department of Justice, ICE argued that the individual who signs Section 2 of the I-9 form must review the employee’s original documents.  ESSG’s process does not comply with the INA because the individual who signs the I-9 form did not review the employee’s original documents.  ESSG argued that the Larsen employees who verified the original documents were ESSG’s agents and under the law of agency, the knowledge of the agent could be imputed on the principal.  It also sought to reduce the civil money penalty characterizing this procedure as a “technical violation.”  ESSG also argued that the assessment should be reduced because ICE did not find any undocumented workers in ESSG’s workforce. 

DOL was unpersuaded by ESSG’s argument.  It upheld ICE’s finding and its proposed assessment, characterizing the ESSG employee’s signature on Section 2 of the I-9 as a false attestation.

The take away from this is that employers should put procedures in place that ensure that the individual who signs Section 2 of the I-9 form on its behalf is the same individual that reviews the original employment verification documents presented by the employee.

The full decision in the ESSG case is available here.