A national staffing company has been fined $227,000 in civil fines for improperly completing the Forms I-9 for its remote hires. This despite the fact that Immigration and Custom’s Enforcement (ICE) determined that all employees were legally authorized to work in the United States. According to a press release by the company, the reason for the fine lies in the fact that the wrong person signed the I-9 forms. Again, according to a company press release, this was how they completed Forms I-9 for remote hires. Which, as I will explain later, was not properly done and hence why the company was fined:
“Prior to the government’s notifying ESSG of any problem with its employment verification process and because of ESSG’s nationwide sprawl, the company confirmed new employees’ identity via an on-site agent who examined applicants’ documentation for authenticity. Once confirmed, the agent faxed color copies of the documents to company headquarters, where ESSG staff completed and signed the mandatory I-9 forms and again confirmed employees’ authorization with the advanced electronic verification system (E-Verify) used by more than 500,000 companies in the U.S.
The government objected to ESSG’s process, claiming the law requires the same person who views the applicant’s original documents must complete and sign the I-9, and disregarded ESSG’s voluntary use of E-Verify. Despite the judge’s decision in favor of the government, ESSG is standing its ground and preparing an appeal.”
This practice is described in the OCAHO judge’s order as well. Namely that an off-site agent of ESSG examined the original documents, copied them and sent them to ESSG in Minnesota where a payroll administrator completed section 2 of the Form I-9 by working off the photocopies. Turns out the government is right in saying the I-9s were improperly completed.
The regulations at 8 C.F.R. §§ 274a.2(a)(3) and (b)(1)(ii)(A) – (B) clearly state that the individual who examines the original document(s) presented by the employee who completes section 1 must be the same person who completes section 2. There must be a physical inspection of the document(s) presented for I-9 purposes AND the person reviewing them must be the person who completes section 2. No exceptions for remote hires. Putting aside the reality that this does not allow employers to leverage technology (like Skype) and that it seems like an archaic requirement in the 21st century … truth is that is the law. Section 2 also includes an affirmative attestation in which the person completing the section states, under penalty of perjury, that they have examined the document(s), they appear to be genuine and relate to the individual presenting them. This requires a tactile review of the documents.
The judge’s conclusions of law were, among others, that:
- Failure to review an individual’s original documents before signing section 2 of the Form I-9 constitutes a failure to properly complete section 2 of the I-9 in violation of 8 C.F.R. § 274a.2(b)(1)(v); and
- Section 2 of the I-9 is properly completed only when the person who signs the section 2 attestation is the same person as the person who examines the employee’s original documents.
In total, the judge found that 243 employees listed in the Notice of Intent to Fine fell under the employer’s incorrect I-9 practices for remote hires. The judge found no “compelling reason” to adjust the penalties set by the government (and Judge Thomas usually does). ICE set the penalties “for the false attestations in section 2 of the I-9s” for the 242 employees at $935 each.
To read the Final Decision and Order in United States v. Employer Solutions Staffing Group II, LLC (OCAHO Case No. 14A00005) click here.
If you are a company with remote hires and would like to discuss your practice please contact me at Arnall Golden Gregory LLP.