We tend to refer to the I-9 as the most complicated government issued 2-page form. Employers often have good intentions when onboarding new employees and engaging in the I-9 process, but as a recent decision demonstrates, that's not always enough to protect against penalties.

We often receive a particular question about how to complete the Form I-9 for employees working in remote locations. Specifically, situations where there may be only one or two employees working in a certain geographical territory, and the company's headquarters/HR department is stationed somewhere hundreds or thousands of miles away. "How do I verify their I-9 documents within 3-days of employment...can they fax me a copy?" As we have been advising, and as a recent situation confirms, reviewing photocopies, or anything less than the actual original document, is NOT the answer.

U.S. v. Employer Solutions Staffing Group II, LLC involved a situation where ICE alleged that the employer failed to ensure that 242 employees properly completed section 1 of the I-9 and/or that the employer itself failed to properly complete sections 2 or 3 of their forms.

Section 2 of the I-9 form contains an attestation section stating, 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 relate to the employee named, that the employee began employment on _______ and that to the best of my knowledge the employee is authorized to work in the United States.

Instead, however, the entity signing the attestation section was only reviewing photocopies of the documents, because the employees were located over 1,000 miles away. ICE argued that nothing in the statute or regulations proves a basis for examining copies in lieu of original documents, and that 8 C.F.R. § 274a.2(b)(1)(v) (emphasis added) expressly provides that "[t]he individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity."

So, this confirms it and eviscerates any doubt that reviewing photocopies, faxed copies, or anything BUT originals, is not acceptable. Employer should carefully review their onboarding policies with respect to I-9s to ensure compliance with this recent decision and the regulations.

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