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Did the Fifth Circuit Authorize Tag-Team Completion of the Form I-9?

4 Nov

A recent Fifth Circuit decision has given hope to employers, at least those in the Fifth Circuit, with Forms I-9 completed before 2013 in some remote hire situations.  The Fifth Circuit acknowledged that the Form I-9 is confusing, and  to be fair, employers must be provided clear instructions on how to complete the Form I-9 before they can be fined for improper completion.

With respect to the Section 2 attestation by employers, clear instructions did not come until issuance of the Form I-9 with revision date 03/08/13.  For forms completed prior to then, an argument can be made that some employer errors were of USCIS’s own making.

The instructions to the Form I-9 with revision date 03/08/13, state that the employer or authorized representative must physically examine each original document presented to determine if it reasonably appears to be genuine and relate to the person presenting it.  Significantly, the instructions also state: “The person who examines the documents must be the same person who signs Section 2. The examiner of the documents and the employee must both be physically present during the examination of the employee’s section.”  (Italics added.) Therefore, it is clear that the person who physically examines the document with the newly hired employee present must be the same person to sign Section 2 of the Form I-9, thereby giving a personal attestation that the documents appear to be genuine and relate to the newly hired employee.

Instructions for completion of prior versions of the Form I-9  were not so clear.  It was not at all clear that the person who examines the documents must be the same person who signs Section 2, or that the examiner of the documents and the employee must both be physically present during the completion of the employee’s section.  There simply was  no instruction, statute or regulation to specifically prohibit such corporate attestation prior to the 2013 revision.  Absent such clear prohibition, an employer representative reasonably could have thought that corporate attestation of Section 2 was acceptable.

What is “corporate attestation”?  Corporate attestation involves one employer representative examining the original documents and meeting with a newly hired employee while a different employer representative, usually in another location, signs the attestation in Section 2 of the Form I-9.

In Employer Solutions Staffing Group II, LLC v. Office of the Chief Administrative Hearing Officer, No. 15-60173 (5th Circuit 2016), the employer used one person in Texas to examine original documents presented by the employee after the employee’s completion of Section 1.  The employer then used another person in Minnesota to examine photocopies of the same documents and then sign Section 2 verifying that the documents were genuine and appeared to relate to the individual.

The court concluded that even if it is proper for DHS to prohibit corporate attestation, there was no authoritative source that clearly prohibited such attestation prior to 2013.

The Department of Homeland Security will soon publish a new version of the Form I-9, which must be issued and made available to the public by November 22, 2016, and which must be used by employers for employment eligibility verification after January 21, 2017.  While it is possible that the government could change the instructions for Section 2 completion in this upcoming version of the Form I-9, to date the government has given no indication that it intends to accept corporate attestation on the Form I-9.  In the age of digital Form I-9 completion and retention and the need to support remote hires and field locations with centralized HR services, allowing corporate attestation would save employers time, money, and frustration.  Unfortunately, employers may be left waiting for corporate attestation through at least another version of the Form I-9.