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In my previous blog, I covered requirements and violations of form I-9.  This article focuses on the available defenses for employers should ICE find some violations.

The first available defense is the good faith defense, which applies to both technical and substantial violations.

A technical violation occurs when there some technical mistakes that do not affect the validity of the I-9.  When a technical violation is identified, ICE gives employer a 10 days-notice to correct it.  Corrections made within that 10-day window can be counted as a good faith effort on the employer’s part, putting them in a more favorable light should there be other violations. Conversely, if ICE does not send a notice of any technical violations within 10 days, those violations cannot be sanctioned.

On the other hand, substantial violations cannot be corrected by the employer. However, employers can still argue good faith by demonstrating willingness to cooperate with ICE to address the alleged issues. A good faith defense can be claimed even in cases where there were failures to complete some section of Form I-9.  Courts have explained that the mere fact that the employer failed to complete some sections of Form I-9, or have a history of failing to complete sections of Form I-9, is not necessarily  a sign of bad faith on the part of the employer.  ICE needs to support its claim of bad faith by adding more elements.

Another defense is against the specific violations of failure to maintain Form I-9.  Employers must keep form I-9 in their records for three years after the hiring of the employee or one year after the employee has been terminated or has left the employment, whichever is later. Employers might likely succeed in setting aside this violation if they are able to establish that they no longer have the duty to maintain I-9 records.

Another defense is the five-year statute of limitations.  Federal government cannot prosecute for violations of federal law after five years from the occurrence of such violation.  Courts have established that the five years period begins from the date of the alleged violation.

Finally, the final defense pertains to independent contractors.  Employers hiring independent contractors are not required to file Forms I-9.  Therefore, employers will need to prove that their workers are independent contractors by showing, for example, a proper agreement, tax forms W-9, etc. In Arizona, employers can execute a declaration of independent status pursuant to Section 23-1601 of the Arizona Revised Statutes in order to establish the existence of an independent contractor relationship. If signed by the employee, this declaration creates a rebuttable presumption the worker is an independent contractor.

Marco Costa, attorney with West, Longenbaugh and Zickerman, PLLC, focuses his practice on business immigration and naturalization, corporate and business law.