The U.S. Court of Appeals for the Fifth Circuit ruled last month that I-9 corporate attestation was permissible in ESSG v. OCAHO, as Employer’s Solutions Staffing Group (ESSG) lacked fair notice that corporate attestation was prohibited. Thus, ESSG did not violate the law when one corporate representative examined original documents in the presence of the hired employee, and another corporate representative in another location inspected photocopies of the documents and completed Section 2 of the I-9 Form. The holding does not address whether the Department of Homeland Security (DHS) can lawfully prohibit corporate attestation.
The appeal was brought after an Administrative Law Judge (ALJ) in the Executive Office for Immigration Review (EOIR) found ESSG liable for 243 violations of 8 U.S.C. §1324a(a)(1)(B) for failure to properly prepare Forms I-9 for 242 employees and ordered ESSG to pay civil money penalties in the amount of $227,251.75.
Pursuant to 8 U.S.C. § 1324a(a)(1)(B), (b), it is unlawful for an employer to hire an individual without complying with certain identity and employment authorization verification requirements, fulfilled by completion of Form I-9. The Immigration and Nationality Act (INA) specifies that a “person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining” employee documents. § 1324a(b)(1)(A). The statute provides that a document is acceptable only if it “reasonably appears on its face to be genuine.” § 1324a(b)(1)(A)(ii).
The ALJ found that ESSG failed to complete Section 2 of the I-9 Form properly because the ESSG employee who signed the I-9 Form did not examine the original employee documents personally and in the presence of the newly hired employee. After examining whether the INA’s verification procedures require personal and not corporate attestation, the Circuit Court found that this regulation does not require that the person who met the hired employee must be the same person that examined the original documents in order to sign the Section 2 attestation on Form I-9. The court reasoned that the INA provides that a “person or entity must attest on a form that is established by the appropriate agency by regulation, that it has verified that the individual is not an unauthorized alien by examining” employee documents. § 1324a(b)(1)(A). Originally, the ALJ rejected ESSG’s position in relation to the subcontracted company’s hiring process, finding that it is impossible for an attester at ESSG to say the documents appear genuine and to relate to the employee unless said attester was physically present with the documents and the employee.
Moreover, the Circuit Court found that the INA itself does not address whether the attester must be the same person who physically examines the documents in the presence of the hired employee. The Court found no clear bar to corporate or entity attestation in the regulations and prior adjudications interpreting the INA, and concluded that even if it is proper for the DHS to prohibit corporate attestation, ESSG lacked fair notice that corporate attestation was prohibited. The Circuit Court vacated the ALJ's order imposing the fines on ESSG.
Although the Circuit Court found no bar to corporate attestation in this case, the Court noted that its holding does not address whether the DHS can lawfully prohibit corporate attestation.
Employers should seek immigration counsel to ensure I-9 compliance.