generally speaking, a company is not liable for “paperwork” errors on the I-9s of contracted employees, since the temp agency is the employer of record and ultimately is responsible for following the I-9 rules. However, the law will extend liability to the end-user client to the extent the temp agency is using unauthorized workers and the client knew or had reason to know. The rationale is that if the client turns a blind eye to its contractors’ immigration compliance practices, the client is (essentially) using a contract to avoid directly verifying the work authorization of contractors’ workers, and then benefiting from the workers’ unauthorized labor.
Kevin Lashus, an immigration attorney and former Assistant Chief Counsel with ICE, offered these additional comments:
That’s right. Remember ICE agents want to push investigations towards presentation to a criminal AUSA (Assistant United States Attorney); so, they are quick to allege racketeering (yes: the thing prosecutors allege against Organized Crime). Two or more parties working in collusion to violate the law constitutes racketeering. In the case of an out-sourced labor provider, the government will presume you entered into a contract for the labor SPECIFICALLY to circumvent the law. Make certain the contract for services includes an indemnity clause to protect your organization from such allegations.
Kevin Lashus, Partner, Fisher Broyles
Kevin Lashus is a Partner with the Austin office with Fisher Broyles. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Mr. Lashus is a graduate of Stanford University and The University of Texas School of Law. He was an Assistant Attorney General for the State of Texas under then Attorney General John Cornyn. He then moved on to the U.S. Department of Justice in 2002, and, in 2003, became Assistant Chief Counsel with the Department of Homeland Security, Immigration and Customs Enforcement, where he remained until 2007 in its San Francisco office and, most recently, its Minneapolis/Saint Paul office—advising special agents during national security investigations, criminal immigration prosecutions, and worksite enforcement actions. Mr. Lashus was a member of the National Security Team.