I-9 compliance is one business expense you should not consider cutting. ICE recently reached settlements with three different companies and imposed heavy fines for I-9 infractions and hiring discrimination against both legal permanent residents and U.S. citizens. These fine amounts illustrate the importance of spending the time, effort, and money now to ensure you are I-9 and visa compliant so as to avoid hefty fines and headaches when ICE comes knocking at your office door.

On June 7^th, an OCAHO judge ordered Alpine Staffing Inc., a Minnesota-based staffing company, to pay over $276,000, finding the company had neglected to adequately complete I-9 forms for more than 100 workers. The company failed to prepare or present I-9 forms for 34 employees, didn’t give the government such forms for 310 workers after three days of notice, and failed to “properly complete” I-9 forms for 130 employees. ICE had initially requested an even higher fine amount.

On May 16^th, the Office of Special Counsel- Immigrant Employee Rights division reached a settlement agreement with Washington Potato Company and Pasco Processing, LLC. The lawsuit alleged that the company requested LPRs to produce a specific document to prove work authorization. The antidiscrimination provision of the INA prohibits such unfair documentary requests when based on citizenship status or national origin. Under the agreement, the company will pay $225,750 in civil penalties, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

On May 23^rd, OSC reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in New Mexico. The settlement resolves the department’s investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for H-2A foreign visa workers. The company must pay $44,000 in full back pay and lost wages, a $5,000 civil penalty, and provide notice to the OSC IER of any H-2A visa applications filed for the next two years, among other requirements.

The best way to avoid fines it to conduct an internal I-9 audit, review your hiring policies and procedures to determine any discrimination issues, and to assess all employment-based visas you have filed or will file to ensure you are in full compliance. Our office offers I-9 audit services and can advise you on all aspects of discriminatory practices and visa compliance to prevent you from paying the price later on. Spending the time and effort now is the best way to avoid the financial hassle of ICE becoming interested in your business practices later.

The Form I-9 employment verification process can be a thorn in any employer’s side as it seems to force company representatives into the role of “junior immigration officers.” Furthermore, this basic two-page verification document (minus instructions and acceptable documents list) is accompanied by a 70 page instruction manual, which only proves how easy it is for employers to make mistakes if the employment verification process is not fully understood.  

For companies that hire remotely, the I-9 process becomes even more tedious. I-9 regulations state that in order to complete and certify Section 2 of the Form I-9 the company representative must physically examine the employment verification documents. Photocopies, scanned documents, pictures, or even documents viewed via Skype are not appropriate.

But that all changed on August 11, 2016, when the Fifth Circuit threw out a six-figure fine against a staffing agency who’s employment verification process consisted of one company representative in Texas inspecting the employee’s documents while another company representative in Minnesota saw photocopies and certified Section 2 of the Form I-9. According to the Fifth Circuit panel, the most reasonable interpretation of I-9 protocol allowed for corporate attestation.

While the Fifth Circuit’s ruling was the first of its kind, many are skeptical that other courts will follow suit. Therefore, best practice when completing the Form I-9 for remote hires would be that the company representative who looks at the employment verification documents must be the same individual who certifies Section 2.

The full case can be found here: http://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-60173-CV0.pdf

The Law Offices of Richard A. Gump, Jr., PC is committed to assisting employers with their employment-based immigration matters.