Technical and Substantive Form I-9 Errors
Errors and omissions discovered in an Immigration & Customs Enforcement (ICE) Form I-9 inspection will be classified as either technical errors (TE) or substantive errors (SE).
Technical errors are minor issues that ICE will allow you to correct. When technical or procedural violations are found, an employer is given ten business days to make corrections. Technical errors that are corrected will usually not result in a fine.
Examples of Technical Errors (TE)
- failure to ensure an individual provides “other last names used” (if applicable), address and birth date in Section 1;
- failure to ensure that an individual provides his A-number in Section 1, but it is listed in Section 2 or on a legible copy of a document retained with Form I-9 and presented at the ICE inspection;
- failure to ensure that the employee dates Section 1 at the time of hire (for employees hired on or after 09/30/1996);
- failure to complete the “Preparer and/or Translator Certification” when someone assists the employee in completing Section 1;
- failure to provide the document title, identification number(s) or expiration date(s) of a proper List A, B and/or C document(s) in Section 2, but only if a legible copy of the document(s) is retained with the I-9 and presented at the ICE inspection;
- failure to provide the date of hire in the Certification (when the Certification was completed on or after 09/30/1996);
- failure to provide the representative’s title, company name and/or address in the Certification;
- in Section 3, failure to fully describe a proper document, as long as a legible copy of the document is retained with the form and presented at the time of the inspection;
- in Section 3, failure to provide the date of the employee’s rehiring.
Technical errors that occur as a result of “bad faith” may become substantive errors and the employer may not be allowed to avoid fines by correcting them. In other words, employers must qualify for the “good faith defense” to be allowed to correct technical or procedural errors and avoid fines. An employer will be presumed to have acted in good faith unless:
- the technical or procedural error was committed to avoid a requirement of the act (IRCA).
- the failure was committed in knowing reliance on the good-faith provision (“easier to receive forgiveness than permission”);
- the employer corrected or attempted to correct the technical or procedural failure with knowledge or in reckless disregard of the fact that the correction or attempted correction contains false, fictitious or fraudulent statements or material misrepresentation.
- the employer prepared the Form I-9 with knowledge or in reckless disregard of the fact that the form contains a false, fictitious or fraudulent statement or material misrepresentation.
- the type of failure was previously the subject of a warning notice issued by INS, contained in an NIF or a Notification of Technical or Procedural Failures letter;
- a “substantial” presence of unauthorized aliens are found in the workplace.
Another example of “bad faith” is the failure to properly train personnel responsible for completing Form I-9.
Substantive errors are those that cannot be corrected because, as a result of the error or omission, the verification of the new hire’s employment eligibility failed at the time the form was completed. An employer may receive a monetary fine for all substantive errors. A technical error can also become a substantive error if the employer is found to have acted in bad faith.
Examples of Substantive Errors (SE)
- failing to produce Form I-9 for an employee;
- employee’s name missing in Section 1;
- no box checked on the Form I-9 or multiple boxes were checked attesting to the employee’s status;
- no employee and/or employer signatures;
- no A-number provided in Section 1 (for non-citizens), and the number is not recorded in Sections 2 or 3, or there is not a legible copy of a document bearing the number retained with the form and presented at inspection;
- document information was not fully recorded in Section 2, and legible copies of the documents were not retained and provided to ICE;
- unacceptable documents recorded in Lists A, B and/or C;
- failing to verify the correct documents in Section 3;
- failing to correctly describe the document in Section 3, when a legible copy of the document was not retained and provided to ICE at the time of inspection;
- failing to sign Section 3 when required;
- failing to date Section 3, or date the section no later than the date of expiration of the individual’s work authorization.
Recommended corrections are those items that are not considered errors but, according to Form I-9 “best practices” or our experienced opinion, may be updated to improve the quality of the form. Few items will fall into this category.
Examples of Recommended Corrections (RC)
- entering “NA” or N/A” in any field at the top of Section 1 in which the employee does not enter actual information. While ICE may not consider the absence of this notation in optional fields an error, form instructions now require the notation;
- entering “NA” or N/A” in the fields left empty after an “alien authorized to work” enters one of the three additional required numbers in the “citizenship status” field. While ICE may not consider the absence of this notation an error, form instructions now require the notation.
- Copying identification documents is optional for employers (except those enrolled in E-Verify; see E-Verify rules). If documents are copied, the copies should be legible to mitigate some substantive errors.
Ketchikan Drywall Services, Inc. v. ICE, 725 F.3d 1103 (9th Cir. 2013).