INA Allows Different Corporate Parties To Complete Form I-9 Section 2 Attestation: Fifth Circuit | Practical Law

INA Allows Different Corporate Parties To Complete Form I-9 Section 2 Attestation: Fifth Circuit | Practical Law

In Employer Sols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, the US Court of Appeals for the Fifth Circuit held that corporate attestation of Form I-9 is permissible under the Immigration and Nationality Act's (INA) verification procedures, and that the Department of Homeland Security's (DHS) argument that INA's verification procedures barred corporate attestation was not entitled to Chevron, Auer, or Skidmore deference due to the lack of fair notice provided to the employer.

INA Allows Different Corporate Parties To Complete Form I-9 Section 2 Attestation: Fifth Circuit

by Practical Law Labor & Employment
Published on 19 Aug 2016 • USA (National/Federal)
In Employer Sols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, the US Court of Appeals for the Fifth Circuit held that corporate attestation of Form I-9 is permissible under the Immigration and Nationality Act's (INA) verification procedures, and that the Department of Homeland Security's (DHS) argument that INA's verification procedures barred corporate attestation was not entitled to Chevron, Auer, or Skidmore deference due to the lack of fair notice provided to the employer.
On August 11, 2016, in Employer Sols. Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, the US Court of Appeals for the Fifth Circuit held that under the Form I-9 applicable in this enforcement action, corporate attestation of Forms I-9 was permissible. Therefore an employer whose corporate representative in one state examined original documents in the presence of the hired employee, and whose second corporate representative in a different state inspected photocopies of the documents and completed Section 2 of Form I-9, did not violate the Immigration and Nationality Act's (INA) verification procedures. Further, the Department of Homeland Security's (DHS) argument that INA's verification procedures barred corporate attestation was not entitled to Chevron, Auer, or Skidmore deference due to the lack of fair notice provided to the employer. ( (5th Cir. Aug. 11, 2016).)

Background

In April 2010, temporary staffing agency Employer Solutions Staffing Group II, L.L.C. (ESSG), agreed with Larsen Manufacturing Co., LLC, to provide staff for Larsen's Texas facility.
ESSG subcontracted with Flexicorps, Inc. to hire the staff for Larsen. Flexicorps employees:
  • Examined the hired employees' original documents proving identity and employment authorization.
  • Ensured the employees completed Section 1 of Form I-9 (which required providing basic biographical information and signing an attestation that the hired employee was legally authorized to work).
  • Made color photocopies of the original documents and sent the photocopies along with Form I-9 to ESSG in Minnesota.
ESSG employees then inspected the photocopies and completed Section 2 of Form I-9 (which required a description of the identifying documents presented by the hired employee and a signed attestation that the employer examined the documents and believed them to be genuine).
Immigration and Customs Enforcement (ICE):
  • Served Notices on ESSG of:
    • inspection, requesting that ESSG present for inspection Forms I-9 for current and terminated employees in Texas between February 2008 and February 2011; and
    • suspect Documents and Notice of Intent to Fine.
  • Alleged that ESSG failed to ensure that 242 employees completed properly Section 1, or failed to complete properly Section 2 or 3 of Form I-9, thereby committing substantive paperwork violations.
  • Claimed ESSG violated the INA (INA § 274A (8 U.S.C. § 1324a(a)(1)(B))).
  • Ordered ESSG to pay a fine.
ESSG contested the charges and requested a hearing before an administrative law judge (ALJ). The ALJ ruled for ICE in a Summary Decision and upheld the fine, finding that ESSG failed to properly complete Section 2 of Form I-9 for 242 employees.
ESSG appealed to the Fifth Circuit.

Outcome

The Fifth Circuit granted ESSG's petition for review and vacated the order, holding that:
  • DHS's position that the INA's verification procedures barred corporate attestation was not entitled to Chevron or Auer deference. Lack of fair notice prevented the court's deference.
  • DHS's interpretation of the INA's verification procedures as requiring attestation by the same person who physically examined the documents in the presence of the hired employee was not entitled to Skidmore deference.
  • Under the Form I-9 applicable in this enforcement action, corporate attestation was permissible. Therefore the employer did not violate INA's verification procedures by providing corporate attestation.
The Fifth Circuit noted that:
  • Under the DHS regulations implementing the INA, employers must examine documents presented by the employee and attest to having done so on Section 2 of Form I-9 (8 C.F.R. § 274a.2(b)(1)(ii)). At the relevant time, the Section 2 attestation in the form read:
    "I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) ________ and that to the best of my knowledge the employee is authorized to work in the United States."
  • Documents presented by the employee must be originals (8 C.F.R. § 274a.2(b)(1)(v)).
The Fifth Circuit found that:
  • The central issue is whether the INA's verification procedures require the person who signs the Section 2 attestation to also have examined the original documents in the presence of the employee, or whether corporate attestation is permitted, allowing ESSG representatives in one state to examine original documents and meet with an employee while a representative in another state attests in Section 2 of the Form I-9.
  • There is no clear bar to corporate or entity attestation in the regulations and prior adjudications interpreting the INA:
    • the INA does not itself address whether the attester must be the same person who physically examines the documents in the presence of the hired employee (INA § 274A (8 U.S.C. § 1324a)); and
    • the applicable regulation does not require the same person who met with the employee and examined his original documents to also sign the attestation. It reads simply that "an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must ... [c]omplete section 2 ... on the Form I–9 ... and sign the attestation...." (8 C.F.R. § 274a.2(b)(1)(ii)(B).)
  • DHS's interpretation of its own ambiguous regulations is potentially owed Auer deference to language appearing on the Form I-9 itself (Auer v. Robbins, 519 U.S. 452, 461 (1997)). Form I-9 qualifies as DHS's interpretation of its own ambiguous regulation.
  • The ALJ's decision was published in the Office of the Chief Administrative Hearing Officer (OCAHO) reporter and appears to be precedential (see US v. Emp'r Sols. Staffing Grp. II, LLC, 11 OCAHO 1242 (2015)). Therefore its interpretation of the INA may warrant Chevron deference (Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).
  • Despite the degree of deference potentially owed to the Form I-9 and the ALJ's decision, ESSG lacked fair notice that corporate attestation was prohibited. This lack of fair notice affects the operation of deference.
  • The fair notice rule requires that "statutes and regulations which allow monetary penalties against those who violate them ... must give [a regulated party] fair warning of the conduct [they] prohibit[ ] or require[ ]...." (Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Comm'n, 528 F.2d 645, 649 (5th Cir. 1976)).
  • Under the fair notice rule, the challenged statute or agency action must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly" (Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
  • Form I-9 provides minimal support for DHS's claimed interpretation that would prohibit corporate attestation. If corporate attestation is permissible, language from the form ("I attest" and "I have examined") could be interpreted to allow the individual who attests to verify all the actions performed by the entity as a whole.
  • DHS likely recognized the uncertainty when, before fining ESSG, it clarified the Form I-9 instructions to read: "The person who examines the documents must be the same person who signs Section 2" (see Instructions for Employment Eligibility Verification and Introduction of the Revised Employment Eligibility Verification Form, 78 FR 15030-01).
  • Form I-9 does not fairly address whether corporate attestation is prohibited or permitted. To the extent the Form I-9's attestation implies it must be personal, the Form I-9 failed to state that requirement with ascertainable certainty.
  • Neither Congress nor DHS had ever declared a bar to corporate attestation prior to this enforcement action.
  • The statute and regulations suggest that corporate attestation is permitted. Either a "person or entity" may attest. (INA § 274A(b)(1)(A) (8 U.S.C. § 1324a(b)(1)(A)).) In fact, Form I-9 itself calls for the signature of the "Employer or Authorized Representative," and the instructions define "employer" broadly. All three sources leave open the possibility that corporate attestation may be accepted.
  • ESSG lacked fair notice. The ALJ's new interpretation does not flow clearly from any authority in existence prior to this action. Therefore Auer and Chevron are inapplicable.
  • In a recent decision, the US Supreme Court found unpersuasive an agency's interpretation of an issue on which the agency had previously been silent and where it failed to "explain the basis of its latest guidance" (Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1352 (2015)). Similarly, the ALJ's novel interpretation in this enforcement action has not been subject to public comment, it addressed an issue the agency had never explicitly addressed before this enforcement action, and it relied strictly on commonsense rather than any legal authority. Skidmore deference is therefore inappropriate (Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

Practical Implications

This decision provides guidance on corporate attestation of Form I-9. Both the statute, the applicable regulations and precedent, and the wording of Form I-9 itself, seem to permit entity attestation. Therefore, the employer did not violate the law when a corporate representative in one state examined original documents in the presence of the hired employee, and another corporate representative in a different state inspected photocopies of the documents and completed Section 2 of Form I-9. Further, nothing in the materials which the employer had to consider before this enforcement action fairly informed it that its procedures were invalid. This lack of fair notice affected the operation of Chevron or Auer deference.
This holding is encouraging news for employers struggling to navigate the Form I-9 completion process legally and economically. However, the holding does not address whether DHS can lawfully prohibit corporate attestation going forward. It also remains to be seen whether the precedential decision the ALJ entered in this case could be the support for any subsequent enforcement actions. It appears DHS intends, at least at this time, to limit corporate attestations, and employers should therefore use it cautiously. Employers may wish to consult with counsel on potential INA liability.