I-9 Form Technical and Substantive Violations
I-9 Form: What are Technical and Substantive Violations?
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What are Technical and Substantive Form I-9 Violations? Technical Violations Technical Violations are procedural. An employer is provided with at least 10 business days to correct technical violations after notification of such violations. If the employer corrects the violations within the designated time period, it is normally deemed to have complied with the requirements. If the technical violations cannot be reasonably corrected, the employer should provide ICE with an explanation in writing of why the violations reasonably cannot be corrected. If ICE determines the explanation is reasonable, the technical violation will not be considered a violation subject to a Notice of Intent to Fine (NIF). Examples of Technical Violations are: Use of the Spanish version of the I-9 form, except in Puerto Rico Failure to ensure an individual in Section 1 provides a name that reasonably relates to them and the documents being presented, their address or birth date Failure to ensure an LPR or alien authorized to work provides an alien number (“A” number) in Section 1, but only if the “A” number is provided in Sections 2 or 3 of the form (or on a legible copy of a document retained with the I-9 Form and presented at the I-9 inspection) Failure to ensure the individual dates Section 1 Failure to ensure a preparer and/or translator provide his or her name, address, signature & date Failure to provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or a proper List B + List C document in Section 2 and 3, but only if a legible copy of the document(s) is retained with the I-9 and presented at the I-9 inspection Failure to provide the title, business name and address in Section 2 Failure to state “Individual under age 18” in Column B for employees under the age of 18 using only a List C document Failure to provide the date of rehire in Section 3 Substantive Violations Substantive violations can result in civil money penalties ranging from $110 for a minimum first offense penalty per form to $1,100. According to ICE, the test of whether a verification violation is either technical or substantive lies in the seriousness of the error and whether or not it could have led to the hiring of an authorized alien. In the guidance, ICE has identified numerous I-9 form violations that it finds substantive. There is no "good faith" defense and these violations will not be forgiven. ICE issues an Application for Notice of Intent to Fine (I-761 Form), for violations; such as: Knowingly hiring or continuing to employ unauthorized aliens Failure to timely prepare or present the Form I-9 Failure to complete Section 2 of the form in three (3) business days Failure to ensure that the employee checks one of the attestation boxes in Section 1 of the I-9 form indicating their immigration status Failure to provide the date employment begins in the attestation portion of Section 2 of the Form I-9. Failure to date Section 2 of the Form I-9 Failure to sign Section 3 of the Form I-9. Failure to timely correct technical paperwork violations Engaging in fraud in completing Form I-9 Continuing to produce violations after previously receiving a Warning Notice or Notice of Intent to Fine (NIF) Further Reference ICE I-9 Inspection Process Chart http://www.i-9audits.com/resources/i-9-inspection-process.pdf