By Bruce Buchanan, Siskind Susser

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In United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015), Office of Chief Administrative Hearing Officer (OCAHO) refused to lower ICE’s proposed penalties of $227,000, which was based on 292 violations at a baseline penalty of $935 per violation.

The main issue in the case was the method used by ESSG, a staffing company, to complete the I-9 forms. ESSG had employees employed throughout the U.S. To complete the I-9 form, the employee filled out Section 1 and an ESSG staffing recruiter or hiring agent reviewed Section 2 document(s) presented by the employee. However, instead of completing Section 2, the ESSG representative forwarded the I-9 form and a copy of the document(s) via mail or courier to its home office in Minnesota. At that point, the payroll administrator reviewed copies of the documents, completed Section 2, and signed as the certifying officer.

Agency Law Principles Rejected
ESSG’s attorney asserted the rules of agency permitted the above procedure for completing the I-9 forms because “general agency law attributes the principal’s knowledge to the agent, and the agent’s knowledge to the principal.” OCAHO rejected this “creative” defense because the procedure does not comply with the requirements of the employment eligibility verification system.

Proper Procedure for Completion of I-9 Forms
As OCAHO stated, “The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible, moreover, for a payroll administrator in Edina Minnesota to determine whether a document reasonably relates to an individual when the administrator never saw” the original documents.

Take Away
It is important for the certifier to personally review the originals of the documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.