Federal immigration officials or the Department of Homeland Security (DHS) may ask a company to produce accurate I-9 records and failure to do so constitutes a violation. Employers are relieved from liability only for certain minor, unintentional I-9 document omissions. It is the scope of that protection that has many employers seeking advice and tips on how they can ensure continued compliance. The answer lies in the distinction between what is substantive versus technical or procedural violation. A relief from liability is available only when the violation is deemed technical or procedural and is corrected within ten days of receiving notice.

What is a "Substantive Violation?"

Here is an example, based on a recent decision by the Justice Department's Office of the Chief Administrative Hearing Officer (OCAHO).

            •  The Department found that failure to complete Section 2 of the I-9 within three business  days of hiring is a substantive violation, not procedural or technical violation. 

            •  Failure to sign the certification within three business days was also deemed a substantive violation.

            •  Failure to identify proper List A, B or C documents (those used to establish identity, employment eligibility, or both) including titles, ID numbers and expiration dates, or attach copies, is a substantive violation.

The employer was unsuccessful in arguing that its failure to sign and date the I-9 forms was a technical or procedural failure and was penalized for each individual deficiency.

How Much Can Non-compliance Cost Me?

Civil money penalties with respect to each document deficiency for each I-9 range from $110 to $1,100. Here are the factors used to determine the penalty:

            •  The size of the business of the employer;

            •  The good faith of the employer;

            •  The seriousness of the violation(s);

            •  Whether or not the individuals involved were unauthorized aliens; and 

            •  Any history of previous violations by the employer.

The statute does not require that equal weight be given to each factor, and it does not rule out consideration of additional factors.

What is the Answer?

Schedule periodic I-9 compliance audits. This may protect employers from liability and eliminate substantive violations.

Tips for Employers - Avoid Violations that Trigger Liability

Verification failures that are NOT “technical or procedural” in nature are most likely due to failure of the person or company to properly prepare or present the Form I-9.

The following are some common areas where individuals or organization can run into trouble:

Section 1 of the Form I-9:

            •  Ensure that the individual provides his or her printed name in Section 1.

            •  Ensure that the individual checks a box in Section 1 attesting to whether he or she is a citizen or national of the United States, a Lawful Permanent Resident or an alien authorized to work in the United States until a specified date.

            •  Ensure that the individual provides his or her Alien or Admission (A) number on the line next to the phrase in Section 1, “A Lawful Permanent Resident,” but only if the A number is not provided in Sections 2 or 3 (or on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection).

            •  Ensure that the individual provides the A number on the line provided under the phrase in Section 1, “An alien authorized to work until,” but only if the A number is not provided in Sections 2 or 3 (or on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection).

            •  Ensure that the individual signs the attestation in Section 1.

            •  Ensure that the individual dates Section 1 at the time of hire if the date of hire occurred before September 30, 1996.

Section 2 of the Form I-9:

            •  Review and verify a proper List A document or proper List B and List C documents in Section 2.

            •  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, unless a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection.

            •  Sign the attestation in Section 2.

            •  Date Section 2 within three business days of the date the individual is hired or, if the individual is hired for three business days or less, at the time of hire if the date that Section 2 was to be completed occurred before September 30, 1996.

Section 3 of the Form I-9:

            •  Review and verify a proper List A document or proper List B and List C documents in Section 3.

            •  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, unless a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection.

            •  Sign Section 3.

            •  Date Section 3.

            •  Date Section 3 no later than the date that the work authorization of the individual hired, recruited or referred for a fee expires.

A person or entity that has committed one or more of the above failures has violated the verification requirements of Section 274A(b) of the Act.

Verification Failures that May Allow Protection, If Corrected Within Ten Days

Section 1 of the Form I-9:

            •  Ensure that an individual provides his or her maiden name, address or birth date in Section 1.

            •  Ensure that an individual provides his or her A number on the line next to the phrase in Section 1, “A Lawful Permanent Resident,” but only if the A number is provided in Sections 2 or 3 (or on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection).

            •  Ensure that an individual provides his or her Alien number or Admission number (A number) on the line provided under the phrase in Section 1, “An alien authorized to work until,” but only if the A number is provided in Sections 2 or 3 (or on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection).

            •  Ensure that an individual dates Section 1.

            •  Ensure that an individual dates Section 1 at the time of hire if the time of hire occurred on or after September 30, 1996.

            •  Ensure that a preparer and or translator provides his or her name, address, signature or date.

Section 2 of the Form I-9:

            •  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 but only if a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection.

            •  Provide the title, business name and business address in Section 2.

            •  Provide the date of hire in the attestation portion of Section 2.

            •  Date Section 2.

            •  Date Section 2 within three business days of the date the individuals hired or, if the individual is hired for three business days or less, at the time of hire if the date on which Section 2 had to be completed occurred on or after September 30, 1996.

Section 3 of the Form I-9:

            •  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 but only if a legible copy of the document(s) is retained with the Form I-9 and presented at the I-9 inspection.

            •  Provide the date of rehire in Section 3.  A person or entity will be considered to have made a good faith attempt to comply with a requirement for I-9 verification notwithstanding a technical or procedural failure to meet such requirement unless:

            •  The technical or procedural failure was committed with the intent to avoid a requirement of the  Act, as demonstrated by the totality of circumstances including but not limited to the substantial presence of unauthorized aliens hired by the employer and a pattern of repeated failures in the completion of the Form I-9.

            •  The technical or procedural failure was committed in knowing reliance on Section 274A(b)(6) of the Act.

            •  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 the attempted correction contains a false, fictitious, or fraudulent statement or material misrepresentation, or has no basis in law or fact.

            •  The employer or recruiter or referrer for a fee prepared the Form I-9 with knowledge or in reckless disregard of the fact that 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 was previously the subject of a Warning Notice issued by the INS, Notice of Intent to Fine or Notification of Technical or Procedural Failures Letter.

Victoria M. Garcia is the Managing Partner of the San Antonio office of Bracewell & Giuliani LLP and is the head of the Immigration Practice Group.  Focusing on labor and employment law for over 20 years, Victoria Garcia represents domestic and international companies in all aspects of labor and employment matters, including immigration.

Bracewell & Giuliani LLP makes this information available for educational purposes.  This information does not offer specific legal advice or create an attorney-client relationship with the firm.  Do not use this information as a substitute for specific legal advice.