Technical and Substantive Errors

Technical and Substantive Errors, Fines and Penalties

Errors and omissions discovered in an ICE Form I-9 inspection will be classified as either technical errors or substantive errors. Technical errors are minor issues that ICE will allow you to correct. Substantive errors, on the other hand, are errors that happen at a moment in time (usually within the deadlines for completing the I-9) and cause the purpose of Form I-9¹ to fail. Substantive errors cannot be corrected² and will usually result in a fine.

Examples of technical Form I-9 errors

Examples of technical (“paperwork”) errors that can be corrected include:

  • 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.

"Bad faith"

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.

Examples of substantive Form I-9 errors

Substantive violations may include the following:

  • 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 Supplement B, 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 Supplement B;
  • failing to correctly describe the document in Supplement B, when a legible copy of the document was not retained and provided to ICE at the time of inspection;
  • failing to sign Supplement B when required;
  • failing to date Supplement B or date the section no later than the date of expiration of the individual’s work authorization.

If the employer cannot establish good faith or if the violation is a substantive violation, the employer will not be allowed 10 business days to correct it and the error will likely result in a fine or other penalties.

Form I-9 fines and penalties

An employer may receive a monetary fine for all substantive and uncorrected technical violations. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $220 to $2,200 per violation. The amount varies depending on several factors including the percentage of forms with errors in relation to the total number of forms audited; and whether or not the employer has previously been audited and fined.

Penalties can also be enhanced or reduced by as much as 25% based on several factors including business size, good faith, the seriousness of the errors, the employer’s history, and whether or not the errors resulted in an unauthorized worker being hired.

Knowingly hiring or retaining unauthorized workers

Employers who knowingly hired unauthorized workers will be required to cease the unlawful activity, may be fined. Fines can range from $548 for a first offense when a low percentage of unauthorized workers are discovered, to $19,242 for a repeat offender when a majority of the employer’s workforce is unauthorized.

Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

In certain situations, the employer may be criminally prosecuted. Recent prosecutions have not been limited to company owners and officers, but have extended to lower-level managers and field supervisors.

Form I-9 Audit - Resources

¹The purpose of “Form I-9: Employment Eligibility Verification” is to verify the identity of a new hire and that the individual is eligible to work in the United States by the statutory deadlines for such verification. The purpose of Supplement B is to verify that an existing non-citizen employee has renewed his/her employment eligibility by the statutory deadline for reverification.

²Substantive errors are continuing errors, meaning that the employer has yet to successfully verify the employment eligibility of the new hire. Substantive errors must be mitigated; in other words, the error must be corrected to end the continuing failure. While mitigation ends the failure, it does not necessarily eliminate the probability of a fine in an ICE inspection.