By: Bruce Buchanan, Sebelist Buchanan Law

In United States v. R&SL Inc., d/b/a Total Employment and Management (TEAM), 13 OCAHO n. 1333 (Nov. 7, 2019), OCAHO found the government does not have to attach the 2,020 Forms I-9 in issue to the Complaint filed with OCAHO.

The government filed a complaint and an amended complaint against TEAM alleging four counts of violations of 8 U.S.C. § 1324a (I-9 violations), attached the Notice of Intent to Fine (NIF) to the Complaint, and included an attachment that listed the names, hire dates, and other relevant information of the employees whose Forms I-9 allegedly contain violations.

In response, TEAM filed a Motion to Dismiss based upon the fact the amended complaint only contains legal conclusions because “mere allegations that violations occurred, without the attachment of the actual Form I-9s in question, is not an allegation of fact, but rather an unsubstantiated premature conclusion that cannot be verified.”

OCAHO stated the amended complaint includes lists pertaining to each count and contains specific factual allegations regarding each of the 2,020 alleged violations. For the 518 alleged violations in Count II, the chart includes the employee’s name, approximate date of hire, date of termination, I-9 retention date, employment authorization status, and a “Notes” section with the alleged facts related to each alleged violation for failure to prepare and/or present Forms I-9. For the 276 and 1,224 alleged violations in Counts III and V, respectively, the chart includes the employees’ names, hire date, the date the employer signed section two of the I-9, employment authorization status, and a “Notes” section contains specific allegations of fact related to each alleged violation for failure to timely prepare and/or present Forms I-9. Thus, OCAHO found the amended complaint is sufficient to satisfy the requirements of 28 C.F.R. § 68.7(b)(3). Furthermore, it stated the government is not required to attach the Forms I-9 in question because the Complaint provides “a clear, concise statement of facts” for each alleged violation.

If you want to know more information on I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at