AUTHOR:  Harry J. Joe.

The United States Court of Appeals for the Ninth Circuit in Seattle has held the employer’s duty to verify that employees are legally authorized to work in the United States includes the legal obligation to fully complete the I-9 Form. The Court also held that any omitted information cannot be cured by the existence of attached copies of the employee’s work authorization and identification documents. Moreover, the Court found that Immigration and Customs Enforcement lawfully could deem such omissions to be substantive violations under longstanding administrative policy. Ketchikan Drywall Services, Inc. v. Immigration and Customs Enforcement, et al., No. 11-73105 (9th Cir. Aug. 6, 2013).
Washington-based Ketchikan petitioned for review of a summary decision of the Administrative Law Judge, Office of the Chief Administrative Hearing Officer, in favor of ICE.  Ketchikan contended that it had fully complied with the employment verification requirements with regard to most of the alleged violations because it had made copies of the employee’s work authorization and identification documents and attached them to the employee’s I-9, and that it was simply a matter of looking at the information on the copies and transferring them to Sections 1 and 2 of the I-9. Moreover, Ketchikan contended that such omissions in the I-9s should be deemed only “technical or procedural failures” to which it was entitled notice of and the usual 10-day period to correct such deficiencies. 
The Court did not agree with Ketchikan’s interpretation of 8 U.S.C 1324a(b)(4), which allows the employer to copy and retain any document presented by the employee as being an “alternative” to the statutory and regulatory requirements to fully conduct the employment verification process and to fully complete the I-9 form for each employee. The Court said the statute means that copying and retaining documents was neither necessary nor sufficient for compliance.  Likewise, the Court agreed with ICE that its long-standing administrative policies on the types of I-9 omissions and deficiencies that would constitute “substantive violations” rather than “technical or procedural errors” wer entitled to deference. 
Ketchikan also challenged the ALJ’s decision not to mitigate the penalty for “good faith.” The Court held that the decision of the ALJ on mitigation or enhancement of penalties would not be reversed in the absence of an abuse of discretion, arbitrariness or capriciousness. Though the ALJ found that Ketchikan’s record of compliance had been “dismal” and that it had previously received a Warning Notice from ICE, it did not find “bad faith” as an independent basis for enhancement of the penalty. However, Ketchikan’s mere assertion that it thought it was in compliance was insufficient to establish good faith. 
The Ninth Circuit’s decision provides a clear warning to employers that there are no defenses for anything short of full and complete compliance with the employment verification requirements for new hires and re-hires. This includes fully and properly completing the I-9 Form.