The U.S. Court of Appeals for the Fifth Circuit recently issued its opinion in Employer Solutions Staffing Group II, L.L.C. v. OCAHO, No. 15-60173 (5th Cir. August 11, 2016). The Fifth Circuit found that it was permissible for an employer to sign section 2 of Form I-9 based only on corporate “knowledge.”
The employer (“ESSG”) is a staffing company headquartered in Minnesota. ESSG contracted with a recruiter in Texas to hire workers for a client there. The recruiter reviewed the original documentation that the new hires presented in Texas and scanned those documents to ESSG, where a representative at ESSG’s Minnesota headquarters completed section 2 of Form I-9, including signing and dating the certification. The Fifth Circuit upheld this practice. However, it is important to understand the limited nature of this court’s holding.
Current USCIS instructions require the individual who personally reviews the original employment verification documents to sign section 2 of Form I-9. At the time of the ESSG’s alleged violation, however, this guidance was not clear. Prior versions of Form I-9, including those effective at the time of the ESSG case, did not include this guidance, so the Fifth Circuit held that the employer did not have “fair notice” of the agency’s interpretation of the regulation. The Fifth Circuit was careful to add, however, that “[o]ur holding does not address whether [the Department of Homeland Security] can lawfully prohibit [this type of] corporate attestation.”