The United States Court of Appeals for the Ninth Circuit recently denied an employer's request to review an Administrative Law Judge's ("ALJ") decision upholding an Immigration and Customs Enforcement ("ICE") finding that the employer's I-9 practices violated the Immigration and Nationality Act.

The ALJ's summary decision found in favor of ICE on 225 of 271 alleged violations and issued a civil penalty of just over $173,000 against the employer. The employer, a drywall installation company, employs four full-time employees, twenty part-time employees, and hires additional workers on a project-by-project basis. In 2008, ICE served a Notice of Inspection and administrative subpoena on the employer, seeking to review I-9 forms and other verification documents. After reviewing the company's records, ICE issued a Notice of Intent to Fine containing counts that (1) there were no I-9 Forms for 43 employees that had worked during the review period; (2) Section 1 was improperly filled out on the I-9 Forms for 65 employees that had worked during the review period; (3) Section 2 was improperly filled out on the I-9 Forms for 110 employees that had worked during the review period; and (4) Section 1 and Section 2 were improperly filled out on the I-9 Forms for 53 employees that had worked during the review period. Upon review, the ALJ determined that summary decision was proper regarding many of the violations ICE found, and awarded a penalty accordingly. The employer subsequently filed a petition for review by the Ninth Circuit.

In denying the employer's petition for review, the Ninth Circuit disagreed with the employer's argument that many of the violations the ALJ found were not violations at all because it had copied and retained documentation from employees and that any omissions from the I-9 Forms themselves were minor or could be addressed by reviewing the attached documentation. In so doing, the court reasoned that the statute does not all employers to copy and retain employee verification documents as an alternative to filling out I-9 forms completely, stating in relevant part that "[r]egulations confirm this understanding that compliance requires that the relevant information from the documents be transcribed onto the I-9 Form, regardless of whether copies of the documents are retained." The purpose of this requirement is to ensure that employers closely review verification documents to ensure that individuals are authorized to work in the United States. Read more.