AUTHOR:  Harry Joe.

An employer was not absolved of its failure to complete I-9 Employment Eligibility Verification Forms for employees in a proper and timely manner and to produce them during an audit and inspection simply because it used E-verify to check the employment authorization of its employees, an administrative law judge has ruled. The ruling arose in United States v. Golf International d/b/a Desert Canyon Golf Club, decided on March 26, 2014, by the Department of Justice’s Office of the Chief Administrative Hearing Officer.

Desert Canyon is a semi-private golf club in Scottsdale, Arizona. It was the subject of an I-9 Inspection and Administrative Subpoena. In the course of the audit, 157 I-9s were produced for active and terminated employees.  Desert Canyon was charged with failure to sign Section 2 of 107 I-9s, of which 93 were entirely left blank. In addition, Desert Canyon also was charged with failure to ensure that employees had properly completed Section 1 of the I-9 in 11 instances. In the course of the audit, Desert Canyon corrected the omissions in Section 2 of the I-9s and submitted the information to E-Verify.

Before the ALJ, Desert Canyon contended that because it used E-Verify, it was entitled to a rebuttable presumption that it had not violated the employment authorization verification requirements of Section 274A of the Immigration and Nationality Act. Moreover, it argued, its use of E-Verify was sufficient to accomplish the verification and attestation requirements in Section 2 of each I-9 and that failure to complete Section 2 had been excused.

The ALJ ruled that Desert Canyon’s use of the E-Verify employment verification system did not provide it with a “blanket protection” from fine proceedings for failure to properly complete an I-9 form for each new employee. The ALJ alluded to the E-Verify Memorandum of Understanding between the Department of Homeland Security and Desert Canyon that ” The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.”

The ALJ ruled that Desert Canyon was liable for 125 violations for the failure to ensure that employees properly completed Section 1 of the Form I-9 and the failure to properly complete Section 2, and that 4 violations had also been established for a failure to prepare and present I-9 forms upon the government’s request for inspection.