Should you copy and retain employees’ I-9 supporting documents?

HR and hiring managers have so many decisions to make when it comes to I-9 and E-Verify compliance, including who do I call if Immigration and Customs Enforcement (ICE) suddenly knocks at our door and asks to see all of our I-9s (and how loudly should I scream)?

One of the most frequently asked policy decisions, though, is actually quite mundane on its surface: Should we retain a copy of the “supporting documents” presented by the employee (e.g., driver’s license and Social Security card)? And if so, will this save us from fines and penalties in the event of an I-9 audit?

As with so many things in I-9 compliance, it depends. Consider this tantalizing tale of I-9 misfortune and redemption in the case of U.S. v. Foothill Packing. This California-based company managed to reduce its I-9 fines by over 80% based on its diligent practice of copying supporting I-9 documents (and some fine lawyering work too).

Case study: The Foothill audit

In 2012, Foothill Packing Inc., a fruit and vegetable packing company in Somerton, Calif., received a surprise visit from an ICE agent. He presented a Notice of Inspection (NOI) and demanded that Foothill produce all I-9 forms for employees hired from 2009 through 2011.

The site manager, Tony, assembled all the I-9s (about 6,000 in all) and packed them in 12 boxes for ICE’s review.

Here’s where it gets interesting: ICE took one look at those 12 boxes (and perhaps seeing a very long evening ahead), instructed Tony that, in fact, he needed to present only the I-9 forms for the 526 current employees, along with their E-Verify confirmation sheets.

Should we send all the supporting documents? Nope, the ICE agent replied. Just the I-9s and E-Verify sheets. Tony complied.

ICE’s RESPONSE. ICE initially sent a letter, notifying Foothill of certain technical or procedural I-9 failures which may (as a matter of law) be corrected prior to the issuance of a fine. The company fixed those errors and waited. Then, in July 2013, the fine arrived. It was a big one: $160,000 for 382 failures on the I-9s, plus one count of knowingly hiring an unauthorized employee.  

Were the I-9s really all that bad? The vast majority of errors (337) were due to missing document information in section 2. It’s too bad Foot­­hill didn’t present ICE with copies of the supporting documents, because these would have been treated as technical or procedural, and Foothill could have corrected them.

THE DISPUTE. Foothill argued that it was hoodwinked by ICE. The company contends it has a rigorous process for verifying I-9 documents, in large part because they employee lots of foreign agricultural workers from Mexico under the H-2A visa program. As part of its I-9 process, Foothill routinely makes copies of the worker’s foreign passports, including the biographical page, the visa stamp, and the I-94.

The company argues that ICE refused to accept these document copies (which were plentiful), and thus robbed Foothill of the opportunity to correct the missing document information in section 2.

THE COURT DECISION. In an odd (and anticlimactic) turn of events, ICE offered no affidavits or other evidence to prove they had asked Foothill to present all I-9 documentation, including the supporting documents. In fact, they didn’t even respond to the company’s argument at all!

As a result, the court threw out the 337 violations relating to section 2 documents. The key point: The court said employers should always be given the opportunity to correct section 2 document information if the document copies have been retained with the I-9.

In the end though, the case was a definite victory for Foothill. Its I-9 fines were reduced from $168,000 to $21,000, due in large part to its diligence in copying supporting documents and fighting ICE on the fine.

THE LESSON: Does this mean we should always copy I-9 supporting documents?

Once again, it depends. While there are numerous advantages to copying and retaining I-9 supporting documents, there are also a few pitfalls for the unwary. In some cases, an em­­ployer may inadvertently prove that it knowingly accepted false documents—particularly when the document copy reveals a glaring error in judgment. Moreover, employers must be mindful of potential discrimination issues (if they fail to copy documents consistently) as well as issues relating to employee’s privacy and data security.

As the Foothill case illustrates, though, copying I-9 supporting documents can definitely be a lifesaver in the face of an I-9 audit. More importantly though, copying documents can also greatly simplify and streamline your I-9 remediation process by eliminating the need to go back to your employees to ask for missing document information.

 


John Fay is an immigration attorney and the general counsel at LawLogix, a leading provider of I-9 and E-Verify compliance software.