5th Circuit Throws Out I-9 Fines Against Employer for Alleged Section 2 Attestation Deficiencies

ICE recently brought Employer Solutions Staffing Group to court after finding that they had improperly managed paperwork. An individual in Texas, where the employer is, looked through the employee documents. The documents were then photocopied to an individual in Minnesota, who then signed the Section 2 employer attestation. The handling of this paperwork resulted in a $237,162.75 I-9 fine to the employer. The employer, however, fought the fine and brought it back to court. Upon entering the 5th Circuit, it was thrown out. The managing of the paperwork, while unconventional, did not violate any existing rules. The employer did not have to pay any fines to the government for the management of their employee paperwork.

The reason for this fine is the I-9 form. ICE accused Employer Solutions Staffing Group of failing to complete one of three sections of the form properly. The handling of this paperwork was viewed as a violation of the Immigration and Nationality Act. ICE brought them to court due to the improper paperwork, leading to the large fine given in court.

The employer lost because two separate individuals were involved. One inspected the documents while a second signed Section 2. ICE and the courts decided against the employer in this case. The employer appeals and brought it back to court because of the wording of the law. While the handling of the paperwork might be viewed as strange, it was not against the law. Nowhere was it stated that the same individual must be responsible inspecting and signing the paperwork.

The law stated that a person or entity must complete the attestation. It does not state that a single individual must do it. Employer Solutions Staffing Group had the same entity handling it, themselves, but different individuals. Due to the wording in the law, forms, and regulations, this was not a violation of the Immigration and Nationality Act. Employer Solutions Staffing Group completed the paperwork, but with different individuals.

After fining the employer, ICE closed this loophole to avoid any future problems. It now requires that the same individual both inspect and sign the documents. All wording has changed to suit the current law. It has been active from 2013 and onwards. Any paperwork prior to 2013 does not fall under the law and may use the appeal from Employer Solutions Staffing Group as an example if legal trouble does occur. Outside of pre-2013 documents, all employers must follow the same steps with one individual.