Staffing Firm Found Liable for Form I-9 Violations Resulting in Steep Financial Penalties

Court admonished company for systemically backdating Forms I-9.

On January 6, 2022, an Administrative Law Judge (ALJ)1 issued a precedential decision in United States v. R&SL, Inc., finding the company liable for more than 1,400 Form I-9 violations and assessing a penalty in excess of $1.5 million.

Procedural History

On September 7, 2016, Immigration and Customs Enforcement (ICE) Agents initiated a Form I-9 audit by serving R&SL a Notice of Inspection (NOI). The NOI gave R&SL until September 16, 2016 to produce all Forms I-9 within the retention period2 (among other documents). A few days later, ICE issued a Form 6051R,3 formally confirming receipt of "three large boxes" of Forms I-9.

Approximately eight months later in May of 2017, ICE issued a Notice of Procedural and Technical Failures (NPTF), to which R&SL timely responded. Over a year later in July, 2018, ICE issued a Notice of Intent to Fine (NIF) alleging 1,853 Forms I-9 violations and assessing a penalty of nearly $2.7 million. R&SL requested a hearing before an ALJ, and ICE filed a complaint with the ALJ, commencing the litigation.4


ICE's Complaint accused R&SL of the following:

  • Count I: Continued employment of an individual after learning he was no longer authorized to work in the United States
  • Count II: Failure to prepare or present (to ICE) 513 Forms I-9
  • Count III: Failure to prepare 276 Forms I-9 in a timely fashion
  • Count IV: Failure to ensure proper completion of Section 1 of Form I-9 and/or failure to properly complete Section 2 of Form I-9. Specific failures included, but were not limited to:
    • Blank or missing pages of Form I-9
    • Lacking or incorrect employee or employer attestations
    • Lacking any check mark indicating work authorization status in Section 1
    • No alien number listed
    • No reverifications
    • Untimely completion of Section 2
    • No or invalid List A, B, and/or C documents
    • Incomplete expiration dates
    • Incomplete document numbers

In her decision on ICE's Motion for Summary Decision, the ALJ found as follows:5

  • Count I: ICE failed to meet its burden to show that the individual was no longer authorized to work in the United States
  • Count II: Five violations dismissed; remaining violations held for trial
  • Count III: Two violations dismissed; R&SL held liable for the remaining violations
  • Count IV: Found liable for 1,105 violations; 32 violations dismissed; 177 held for trial

After a two-day hearing in which multiple witnesses testified, the ALJ issued a Final Decision and Order, dismissing the 511 violations under Count II. The ALJ held that ICE did not prove that the 511 Forms I-9 were never prepared. Instead she found that both parties gave equally plausible, credible accounts: R&SL's that the Forms I-9 were turned over (and lost by ICE during the investigation) and ICE's that the Forms I-9 were never prepared. The ALJ held that for scenarios in which there are equally plausible and credible explanations, the party bearing the burden (ICE) must lose.

Regarding Count IV, the ALJ found R&SL liable for all 177 violations at issue. ICE credibly argued that the signatory in Section 2 was not employed by R&SL at the time the Forms I-9 should have been completed. Thus, the ALJ found, the forms were either backdated or never completed at all.


The ALJ significantly reduced the fine for all violations except those where backdating was evident. R&SL is required to pay $1,527,308.90 in penalties in addition to the more than $102,000.00 in legal fees incurred prior to commencement of the hearing.

The decision on the Motion for Summary Decision can be found here while the Final Decision and Order can be found here.

Posted: January 31, 2022

1 Administrative Law Judges are employed by the Department of Justice, Office of Chief Administrative Hearing Officer (OCAHO) and adjudicate cases stemming from Sections 274A (Form I-9 violations); 274B (anti-discrimination); and 274C (civil document fraud).

2 Forms I-9 must be retained for three years from date of hire or one year from the date of termination, whichever is later.

3 The Form 6051R is a generic form used by ICE to acknowledge receipt of seized property during an investigation.

4 There was a collateral dispute between the parties regarding whether R&SL was entitled to a hearing which resulted in further litigation prior to the filing of the complaint.

5 A different ALJ issued the Decision on Motion for Summary Decision and another conducted the hearing and issued the Final Decision and Order.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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