Dot Your I's and Cross your T's in Person: Complying With The I-9 "Examination" Requirement


By: Nina Maja Bergmar

Federal law requires every employer to complete Form I-9 for each new employee. As part of this process, the employer must request original documents from a list of acceptable documents that establish an employee’s identity and work authorization. The employer must then sign the so-called attestation clause in Section 2 of Form I-9, confirming that it has examined the documents presented by the new hire and that, to the best of its knowledge, the hire is authorized to work in the United States.

In a recent decision by the Department of Justice, a company was slapped with a hefty $227,251.75 penalty for failing to properly complete Section 2 of Form I-9. At issue in the case was the employer’s bifurcation of its I-9 responsibilities, whereby it examined the original documents onsite, but contracted with a separate entity to sign the attestation clause. The DOJ took issue with the fact that the agent who signed the attestation clause had never actually seen the original documents, only photocopies. The DOJ clarified that Section 2 of Form I-9 is properly completed only when the person who signs the attestation clause is the same person as the person who examines the employee’s original documents. By having different individuals review the original documents and sign the attestation clause, the employer subjected itself to liability for 243 violations of 8 U.S.C.  §1324a(a)(1)(B)—the total number of I-9 Forms it had completed for its employees.

In light of the DOJ’s harsh decision, employers should pay particular attention to the fine print of the attestation clause, which implicitly mandates that the signatory personally examine the original documents before signing the document. Employers should be especially cognizant of this requirement when subcontracting its I-9 verification process, as the subcontractor must be physically present to review the original documents before signing the attestation clause.

If still in doubt about how to complete Section 2 of Form I-9, visit the USCIS’s website or contact our office for further guidance.