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“Good Faith” Defense for Form I-9 “Technical” Violations
Employer Duty to Complete and Retain Forms I-9 for All Workers
The INA imposes an affirmative duty on employers to prepare and retain Forms I-9, Employment Eligibility Verification, for any employee hired after November 6, 1986, and to make the original Forms I-9 available for inspection within 3 days of notification. If an employer refuses to produce Forms I-9 after being provided three days notice, ICE will seek to compel production by subpoena.
The I-9 Form must be completed for each new employee within three business days of the hire, and each separate failure to properly prepare, retain, or produce the original I-9 forms upon request constitutes a violation. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employer, whichever is longer.
Verification violations are defined as any paperwork or procedural errors that occur within the Form I-9 employment eligibility verification process. Verification violations are classified as either technical or substantive.
The I-9 law has a "Good Faith Compliance" provision that may provide an employer defense for "technical or procedural" failures in the I-9 employment verification process. This provides a limited “second chance” for employers to avoid I-9 penalties and sanctions after being notified to their technical or procedural I-9 violations and a grace period of ten days to correct these violations.
Only failures that are "technical" or "procedural" are covered by the good faith defense and eligible for correction during the ten-day period.
There is no good faith defense for employer “substantive” Form I-9 errors or violations.
For a thorough discussion of which I-9 errors are substantive and which are technical or procedural and eligible for the good faith defense see generally, “Employer Good Faith Compliance Defense to Form I-9 Violations and Employer Sanctions”.
“Good Faith” Defense for Technical I-9 Violations Only—Not for Substantive I-9 Violations
The I-9 employer sanctions law provides that an employer charged with technical and procedural failures in connection with the completion of an I-9 form must be afforded a 10-day period after being advised of the basis for the I-9 error in which to correct such technical and procedural errors. This is often referred to as the “good faith” compliance defense to I-9 errors and violations.
The “good faith” defense is not available, however, when the violation is substantive in nature, rather than technical or procedural. The good faith defense relieves employers from liability for certain minor, unintentional violations of the I-9 employment verification requirements, but does not provide a shield to avoid the basic requirements of the law—the employer must examine the documents, and certify and date its examination.
1. Substantive Violations: These I-9 errors always subject an employer to I-9 employer sanctions.
I-9 Errors (violations) undermine the integrity of the Form I-9 by making it impossible to establish that unauthorized employment has not occurred.
- Failure to timely prepare or present a Form I-9;
Section 1 Substantive Violations
- Failure to ensure that an individual provides his printed name in Section 1 of the Form I-9;
- Failure to ensure that an individual checks a box in Section 1 of the Form I-9 attesting to whether s/he is a citizen or national of the U.S., a lawful permanent resident, or an alien authorized to work until a specified date, or checking multiple boxes attesting to more than one of the above;
- Failure to ensure that an individual signs the attestation in Section 1 of the Form I-9;
- Failure to ensure that an individual dates in Section 1 of the Form I-9 at the time employment begins.
Section 2 Substantive Violations
- Failure to review and verify a proper List A document or proper List B and List C documents in Section 2 of the Form I-9;
- Failure to sign the attestation in Section 2 of the Form I-9;
- Failure to recertify and complete within 90 days the pertinent Section 2 information for verification with a receipt for lost or stolen documents.
Section 3 Substantive Violations
- Failure to review and verify a proper List A document or proper List B and List C documents in Section 3 of the Form I-9;
- Failure to sign Section 3 of the Form I-9;
2. Technical Violations: These failures will not subject an employer to I-9 employer sanctions.
(Provided if the employer is alerted to the errors it corrects them within 10 days.) I-9 errors that will not subject an employer to sanctions:
- Use of the Spanish version of Form I-9 except in Puerto Rico;
Section 1 Technical Violations
- Failure to ensure that an individual provide her/his maiden name, address, or birth date in I-9 Section 1 {Failure to ensure that an individual provides his/her Social Security number is not a violation.};
- Failure to ensure that an individual provides his/her alien registration number (“A number”) if s/he is a permanent resident, but ONLY IF the A number is provided in Sections 2 or 3 of the Form I-9 (or on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection);
- Failure to ensure that the individual dates Section1 at the time of hire;
- Failure to ensure a preparer or translator provide his/her name, address, signature, or date in I-9 Section 1;
Section 2 Technical Violations
- Failure to provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in Section 2 of the Form I-9, but ONLY IF a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection);
- Failure to provide the title, business name, and business address in Section 2 of the Form I-9;
- Failure to date section 2 of the Form I-9 within 3 business days of the date of hire (date employment begins) or, if the individual is employed for 3 business days, at the time employment begins;
- Failure to state “individual under age 18” for an employee under the age of 18 using only a List C document;
- Failure to state “special placement” for employees with a disability using only a List C document;
Section 3 Technical Violations
- Failure to provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in Section 3 of the Form I-9, but ONLY IF a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection);
- Failure to provide the employee's date of rehire in I-9 Section 3;
3. Ten-Day Correction Period for Technical Violations
An employer who is provided with at least ten business days to correct technical violations after notification of such violations and corrects the violations within the designated time period is deemed to have complied with the Form I-9 legal requirements. The employer will be subject to a Notice of Intent to Fine (NIF) for uncorrected violations unless uncorrected violations could not reasonably be corrected.
Procedure for Correcting Technical Violations
Correcting a Violation in Section 1 of the Form I-9—ensure that the individual and/or preparer and/or translator:
- Correct the failure on the Form I-9;
- Initial the correction; and,
- Date the correction.
Correcting a Violation in Sections 2 or 3 of the Form I-9
- Correct the failure on the Form I-9;
- Initial the correction; and,
- Date the correction.
Technical violations that reasonably cannot be corrected within the time frame provided include circumstances where: the individual is no longer employed by the employer; the individual is on medical leave, leave of absence, or vacation during the time provided for the correction; and/or the preparer or translator cannot be located.
Exemptions from the Ten-Day Correction Period—The following evidence abrogates the presumption of employer good faith:
- The "totality of the circumstances" demonstrates that the technical violation was committed with the intent to avoid a requirement of the law, including but not limited to the substantial presence of unauthorized aliens hired by the employer and a pattern of repeated failures in the proper completion of Form I-9;
- The technical violation was committed in knowing reliance on the ten day correction period;
- The employer corrected, or attempted to correct, the technical violation with knowledge or in reckless disregard of the fact that the correction or attempted correction contains a false, fictitious, or fraudulent statement or material misrepresentation, or has no basis in law or fact;
- The employer prepared the Form I-9 with knowledge or in reckless disregard of the fact the Form I-9 contains a false, fictitious, or fraudulent statement or material misrepresentation, or has no basis in law or fact;
- The type of failure involved was previously the subject of a Warning Notice, a NIF, or a Notification of Technical or Procedural Failures letter.
