Substantive and Technical Violations: Which Can Be Cured
One category of paperwork error comes with a statutory right to fix it after the agency points it out. The other is counted, priced and charged. The difference is worth more than any argument an employer will make later.
The rule in short
The statute treats a technical or procedural failure as compliance where the employer made a good faith attempt, provided it is given notice and at least ten business days to correct. Substantive failures carry no cure. The distinction is drawn by agency guidance rather than by regulation, and the adjudicating judges have not always followed it. Penalties begin with the proportion of forms carrying violations and are adjusted for five statutory factors.
Every defect found in an inspection lands in one of two buckets. A technical or procedural failure carries a right to be told about it and to fix it. A substantive failure is counted and priced. No argument made after the notice moves a defect from the second bucket to the first, which is why the classification is the first thing to establish.
The cure the statute provides
Where an employer has failed to comply in a technical or procedural manner, it is treated as having complied if it made a good faith attempt to comply, provided it is given notice of the failure and a period of at least ten business days to correct it. The period is a floor rather than a ceiling, and it runs from the notice.
Two conditions limit it. The failure must be technical or procedural, which the statute does not define. And the employer must have been acting in good faith; the cure is not available where it has engaged in a pattern or practice of violations. Both conditions are contested in practice, and both turn on evidence the employer either has or does not have about how it ran the process.
The defects that can be corrected
Technical failures are omissions that leave the essential attestations intact. A missing address or date of birth in the employee's section. A preparer or translator block left unsigned where assistance was given. The employer's business name or address omitted from its own section. A document entry that identifies the document but omits part of the detail.
What unites them is that the form still shows an employee who attested, an employer that examined documents, and identifiable documents from the correct lists. The missing pieces are supporting rather than structural.
The defects that cannot
Substantive failures go to whether verification happened at all. No form prepared for an employee. The employee's section unsigned. The employer's attestation unsigned. No document recorded, or documents recorded from the wrong combination of lists. A reverification that was required and never performed, on the rules set out in reverification and the documents that may not be demanded.
The missing form is the worst of these for a simple reason: there is nothing to correct. Preparing one after the notice arrives produces a document dated outside the statutory window, which announces the violation rather than curing it.
| Defect on the form | Ordinary classification | Can it be cured after notice | Why |
|---|---|---|---|
| No form exists for the employee | Substantive | No | Verification did not occur within the period allowed |
| Employee's section unsigned | Substantive | No | The employee made no attestation |
| Employer's attestation unsigned | Substantive | No | No one certified that documents were examined |
| Employee's address or birth date omitted | Technical | Yes, within the period given | The attestation stands; the omission is supporting detail |
| Employer's business name or address omitted | Technical | Yes, within the period given | The examination is recorded; the identifier is missing |
| Documents recorded from the wrong lists | Substantive | No | The combination presented did not satisfy the requirement |
The substantive and technical lists that inspectors work from come from agency guidance rather than from the regulation, and the administrative law judges who hear contested fines are not bound to follow them. Some defects treated as substantive in an inspection have been analyzed more favorably in litigation. This cuts both ways: it is a reason to contest a charge built on a borderline classification, and a reason not to design a compliance program around the hope that a borderline defect will be forgiven.
How the number is arrived at
The calculation starts with a ratio: the number of forms carrying violations divided by the number of forms the employer should have had. That proportion sets a base amount within the statutory range, so an employer with a hundred employees and ten defective forms is priced differently from one with a thousand employees and the same ten.
The base is then adjusted for five statutory factors: the size of the business, the good faith of the employer, the seriousness of the violations, whether unauthorized workers were in fact involved, and the employer's history of previous violations. Each can move the number in either direction, and good faith is the one an employer can build in advance rather than argue after the fact.
Knowing hire and continuing to employ are charged separately and priced on a higher scale with tiers for repeat conduct. They are findings about people rather than about paperwork, and an employer facing both should not let a paperwork response prejudice the other. Where an inspection has produced charges in both categories, dividing the workstreams early with employment verification counsel is worth more than any single argument made in either.
Good faith is a record, not an assertion
The good faith factor rewards evidence. A written procedure. Training records for everyone who completes the employer's section. Periodic internal audits covering the whole population, with the findings written down and the corrections made openly and consistently. A retention rule applied by a system rather than by a person.
An employer that produces that file is arguing about a factor the record supports. One that has never examined its own forms is asserting a state of mind. The mechanics of the inspection that will test all of it are set out in the notice of inspection and the three days that follow, and the completion rules that define what a correct form looks like are in the verification form and who signs it, and by when.
The structure will be familiar to anyone who has worked in a regime where an operator's own discovery and correction of a problem changes the price of it, examined in self-disclosure and the penalty reduction it buys. The lesson transfers cleanly: the value of finding a problem first is not that the problem disappears, but that the employer, rather than the inspector, defines what happened.
Points to carry away
- A technical or procedural failure made in good faith carries a right to notice and at least ten business days to correct.
- A substantive failure carries no cure period at all.
- A missing form is the clearest substantive violation and cannot be remedied after an inspection begins.
- The classification comes from agency guidance rather than from the regulation itself.
- The cure is unavailable where the employer has engaged in a pattern or practice of violations.
- Penalties begin with the proportion of forms carrying violations and are then adjusted for five statutory factors.
Questions readers ask
Can an employer correct errors it finds on its own before any inspection?
Yes, and it should. The cure period in the statute applies to what an agency identifies, but nothing prevents an employer from correcting its own file at any time. Corrections are made openly, with a line through the error, the correct entry, and the initials of the person making the change. What matters is that the review covers the whole population rather than selected employees, because a partial correction produces an inconsistency that is harder to explain than the original error was.
Is a form completed late a technical or a substantive problem?
Lateness is treated as substantive in agency practice, because the deadline is the substance of the obligation rather than a formality about how a field is filled in. A form signed a week after the deadline records an examination that happened outside the period the statute allows. This is the reason employers gain little from completing missing forms once a notice of inspection has been served: the resulting document announces its own lateness, and the alternative of falsifying the date is far worse.
Do the judges follow the agency's classification?
Not automatically. The classification comes from agency guidance rather than from the regulation, and the administrative law judges who hear contested fines assess violations and penalties independently. Some defects the agency treats as substantive have been analyzed differently in contested cases, and penalty amounts are frequently reduced. That independence is a reason to contest rather than to concede, but it is not a reason to rely on a favorable classification when designing a compliance program.
Sources
- Cornell Legal Information Institute — 8 U.S.C. 1324a, Unlawful Employment of AliensThe good faith compliance provision, the cure period, and the five penalty factors.
- Cornell Legal Information Institute — 8 CFR 274a.2, Verification of Identity and Employment AuthorizationWhat each section of the form must contain, which defines what a defect is.
- Cornell Legal Information Institute — 8 CFR 274a.10, PenaltiesThe civil and criminal penalty structure for verification and employment violations.
- eCFR — 8 CFR Part 274a, Control of Employment of AliensThe current regulatory text on verification requirements and penalties.
- U.S. Immigration and Customs Enforcement — Form I-9 InspectionThe agency's account of the notices issued and the correction period offered.
- U.S. Citizenship and Immigration Services — Handbook for Employers M-274Guidance on completing each field correctly and on making corrections.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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