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Signing Section 2 of I-9 Forms Can Get You in Trouble!

On Jan. 20, 2015, the U.S. Department of Justice Executive Office for Immigration Review, Office of Chief Administrative Hearing Officer (OCAHO) in U.S. v. Employer Solutions Staffing Group II, LLC, upheld ICE’s finding and proposed assessment of $227,251.75 in fines for making a false attestation on Section 2 of the I-9 form.

Employer Solutions Staffing Group II, LLC (ESSG), a staffing agency, supplied temporary employees to Larsen Manufacturing Co. (Larsen). In 2011 Larsen received a Notice of Inspection (NOE) of its I-9 forms from ICE. Larsen’s workforce consisted of ESSG employees and ICE was referred to ESSG, the actual employer. The audit of ESSG’s I-9 forms did not find any unauthorized workers. However, the audit found technical violations related to the completion of Section 2 of the I-9 forms and ICE proposed fines of $935 per violation plus costs totaling $227,251.75.

What went wrong? For practical reasons, Larsen functioned as ESSG’s agent in completing the I-9 forms, or so the parties believed. Larsen handled the I-9 verification process for the employees ESSG assigned to Larsen. Larsen had the employees complete section 1 of the I-9 and reviewed original documents presented by the employees. The I-9 forms and copies of the original I-9 verification documents viewed by Larsen were then forwarded to ESSG, the actual employer. The responsible ESSG employee would then complete and sign Section 2 of the I-9 forms.

The parties believed that an agency had been created and so argued when they sought review of ICE’s findings from the U.S. Department of Justice. ICE argued that ESSG was in violation of the INA because the individual who completed and signed Section 2 of the I-9 did not review the original verification documents presented by the employee. The DOJ upheld ICE’s proposed fines and finding that ESSG’s signature in Section 2 of the I-9 amounted to a false attestation.

Although an agent may be used for I-9 verification, the attestation requirements of Section 2 of the I-9 form clearly require that the individual who is authorized by the employer to complete Section 2 and who signs the form must view the employee’s original documents.

The full decision may be found here.



About this Author

Mariana Richmond, Barnes Thornburg Law firm, Indianapolis, Labor Law Attorney

Mariana Richmond is a partner in the Corporate Department in the Indianapolis, Indiana office of Barnes & Thornburg LLP and heads the Immigration Practice Group. She is a member of the Global Services Practice Group and limits her practice to immigration law, serving corporate as well as individual clients. Ms. Richmond assists multinational corporations with the transfer and hiring of foreign nationals for their operations in the United States on a temporary or permanent basis. She advises in-house counsel and human resources administrators who need guidance on immigration matters...

Kenneth J. Yerkes, Barnes Thornburg Law Firm, Indianapolis, Corporate and Labor Law Attorney

For 35 years, Ken Yerkes, chairman of the Labor and Employment Department, has successfully fought for his clients' business objectives at the bargaining table; in federal and state court matters; in arbitrations; and on the ground in facilities throughout the U.S., including California, Florida, Georgia, Illinois, Indiana, Kentucky, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Tennessee, West Virginia, Washington, D.C., Wisconsin and Wyoming. Ken's ability to transform complex matters into workable strategies has earned him his clients' trust and acclaim as a recognized leader in labor and employment law.

It is no surprise, then, that Ken is a Fellow in both The College of Labor and Employment Lawyers and the Litigation Counsel of America, and has received the highest rating in every edition of Chambers USA: America's Leading Lawyers for Business. In addition, Ken, who has been chair of the Labor and Employment Department since 2000, is rated AV Preeminent® by Martindale Hubbell™ and listed as a “Top Rated Lawyer in Labor & Employment.” Ken has been recognized on multiple occasions as one of Indiana's “Top 50” lawyers in Indiana Super Lawyers; has been listed in Best Lawyers in America for 20 years and was named “Lawyer of the Year” by Best Lawyers; and has been interviewed and quoted in numerous publications, including the Wall Street Journal; Inside Counsel Magazine; Corporate Counsel Magazine; and Law360. Ken has also been named a “Distinguished Barrister” by The Indiana Lawyer.

Because of his desire to always remain a full-service resource for his clients, Ken has designed his practice to be well-balanced between litigation, counseling, and traditional labor matters. With respect to collective bargaining, in addition to negotiating countless contract renewals (some over several contract terms with the same client), Ken's experience runs the gamut from first contract negotiations to pattern agreements, managing strikes, and successfully implementing lockouts without union charges resulting in a complaint. He has bargained with and run union-avoidance campaigns against virtually every union in the country, and regularly trains employers on the best practices for remaining union free.

John Koenig, Barnes Thornburg Law Firm, Atlanta and Indianapolis, Labor and Employment Law Attorney

John T.L. Koenig is a partner in the Labor & Employment Department of Barnes & Thornburg LLP. He maintains a national, full-service practice representing management exclusively in all aspects of labor and employment law.

Traditional Labor

Mr. Koenig represents companies in the grievance and arbitration process, collective bargaining, strike preparation, union organizing and election matters, and in unfair labor practice and representational cases before the NLRB. He frequently trains supervisors on effective and...

David B. Ritter, Barnes Thornburg Law Firm, Chicago, Labor and Employment Law Attorney

David B. Ritter is a partner in the Chicago office of Barnes & Thornburg LLP. He is a member of the firm’s Labor & Employment Law Department and co-chairs the Logistics and Transportation Practice Group. He represents management nationwide in virtually all areas of labor and employment law, including employment discrimination and harassment claims, wage and hour disputes, non-compete, trade secret and restrictive covenants and employment torts.

With nearly 30 years of experience representing public and private companies, Mr. Ritter has...

William A. Nolan, Barnes Thornburg Law Firm, Columbus, Labor and Employment Law Attorney

William A. Nolan serves as the Managing Partner of Barnes & Thornburg LLP’s Columbus, Ohio, office, which he opened in 2009. He is a member of the firm’s Labor and Employment Law Department. Bill has extensive experience as a litigator, trial lawyer and counselor. His practice includes a broad range of issues that organizations face in our rapidly changing competitive, legal and workplace environments. In short, he works to help management structure organizations, practices and relationships to proactively minimize the business disruption of disputes, and to help clients prevail when...