Recently, an administrative law judge upheld a finding by the US Immigration and Customs Enforcement agency (ICE) that Employer Solutions Staffing Group II, LLC (ESSG), a Minnesota-based PEO focused on providing administrative and payroll functions to staffing companies, had violated I-9 regulations by making false attestations on 242 I-9 forms. The ALJ also upheld the fine of $227,251.75 imposed by ICE for the violations. A copy of the case may be found here.
In this case – and, perhaps, in other workforces challenged by the realities of remote workers – ESSG had local representatives review identity and eligibility requirement documents and affirm the documents’ authenticity. These local representatives also sent photocopies of the documents presented to ESSG, for ESSG’s review. Based on the representatives’ affirmations and review of the photocopied documents, ESSG personnel completed and signed off on Section 2 of I-9 forms relating to newly-hired employees.
The problem is this: by signing on Section 2, the person signing is attesting “under penalty of perjury … that [he or she has] examined the document(s) presented by” the subject employee. There is no provision within the applicable law or regulations that authorizes an employer to examine photocopies of documents, or to delegate the obligation to conduct an in-person inspection of employee verification documents. An employer may delegate this obligation to an authorized representative, however, if the employer also delegates to the same authorized representative the obligation to attest to the documents’ authenticity. In other words, the person signing off on completed I-9 forms must be the same person who reviews the original (not photocopied) documents, and certifies that the documents appear to be genuine and relate to the employee named.
This case is important, and stands for the proposition that the only correct procedure for verifying employee identity and authorization to work in the United States is by in-person inspection of original documents in the presence of the subject employee, with such inspection made by the employer representative attesting to the documents’ authenticity. In other words, no Skype or other technology will suffice.
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