Vacating a $226,000 fine against Employer Solutions Staffing Group for alleged Form I-9 violations, the Fifth Circuit Court of Appeals has ruled that it was not a violation for employer to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing photocopies of the documents sent by the Texas person reviewing the forms. Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).

In February 2013, ICE alleged that ESSG failed to ensure that 242 employees completed properly Section 1, or failed to complete properly Section 2 or 3 of the I-9 Form, thereby committing substantive paperwork violations. Further, ICE claimed ESSG violated the Immigration and Nationality Act and ordered ESSG to pay fines totaling $237,162.75. An administrative law judge ruled for ICE in a Summary Decision, finding ESSG failed to complete properly Section 2 of the I-9 Form for 242 employees. The ALJ fined ESSG $226,270 for these violations. The employer appealed.

The Court said the INA provides for attestation by a “person or entity” and is unclear whether the person who reviews the documents and completes the attestation has to be the same person. Therefore, it was reasonable to interpret the attestation as valid as long as the same “entity” both reviews the documents and completes the attestation. Likewise, neither the relevant regulations nor the Form I-9 provided that the same individual who inspected the employee documents must complete the employer attestation. Therefore, the Court found that it was not a violation for ESSG to complete its Forms I-9 in the manner that it did and vacated the ALJ’s order.

This decision is unlikely to change the best practice and advice that the person reviewing the original documents should be the same person that signs the attestation. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the I-9 instructions to make clear that the same person who examines the document must be the same person that signs the form.

Employers facing fines for the same issue as ESSG, and where the Forms I-9 were completed prior to 2013, should determine with the assistance of counsel whether the Fifth Circuit decision affects their situation.