The Good Faith Defense and How Far It Reaches
Good faith appears three times in this statute and means something different each time. One provision is a complete defense to a hiring charge, one converts a paperwork failure into compliance, and one merely adjusts a penalty. Conflating them is the standard error.
The rule in short
The statute treats good faith compliance with the verification procedure as an affirmative defense to a charge of hiring an unauthorized worker. Separately, a good faith attempt to comply excuses a technical or procedural failure unless the employer declines to correct it after notice. Good faith also appears as one of five factors adjusting a paperwork penalty. A pattern or practice of unlawful employment forfeits the statutory protections.
Good faith is the most frequently invoked and least precisely used concept in this area. Employers reach for it when a form is defective, when a worker turns out to be unauthorized, and when a penalty seems disproportionate. The statute does provide relief in all three situations, but through three separate mechanisms with different requirements and different effects, and an argument that mixes them is weaker than one that picks the right provision.
The affirmative defense to a hiring charge
The first mechanism is a complete defense. An employer that establishes good faith compliance with the verification procedure has an affirmative defense to a charge that it hired an unauthorized worker. The logic is straightforward: the statute asks employers to examine documents that reasonably appear genuine, and an employer that did so cannot also be liable for failing to detect a good forgery.
The limits follow from the same logic. The defense addresses the hiring charge and nothing else. It does not excuse a form that was never completed, a form completed late, or a form missing the entries the regulation requires. Those are separate charges with their own analysis, and an employer whose forms are defective has usually lost the factual predicate for the defense anyway, because compliance with the procedure is what the defense requires.
The regulation implementing the defense is short, and its brevity is instructive. It states the defense in terms of compliance with the procedure rather than in terms of the employer's beliefs about a particular worker. An employer arguing that it had no reason to suspect anything is answering a question the provision does not ask. The question is whether the procedure was followed for that hire.
The technical failure provision
The second mechanism treats a technical or procedural failure as compliance where there was a good faith attempt to comply. This is not a defense to be pleaded; it operates so that the failure is not a violation in the first place. Its conditions are procedural rather than evidentiary, and it falls away where the agency explains the basis for the failure, allows at least ten business days to correct, and the employer does not correct within that period.
The relationship between the two provisions is worth stating. An employer can hold the technical failure protection and still face a hiring charge, and can hold the affirmative defense to a hiring charge and still be penalized for paperwork. They address different conduct. The mechanics of the cure period are set out in technical failures given time to correct.
| Provision | What it addresses | Effect if established | How it is lost |
|---|---|---|---|
| Good faith compliance with the verification procedure | A charge of hiring an unauthorized worker | Complete affirmative defense to that charge | The procedure was not in fact followed |
| Good faith attempt, technical or procedural failure | A defective entry on the form | The failure is treated as compliance | Failure to correct within the period allowed after notice |
| Good faith as a penalty factor | The amount of a paperwork penalty | Adjustment within the statutory range | Nothing in the record supports it |
| Pattern or practice conduct | All of the above | None; the protection is unavailable | Applies categorically to the employer |
There is also a difference in who bears the burden. The affirmative defense is the employer's to establish, which means producing the completed form and showing the procedure was followed. The technical failure provision operates without the employer establishing anything until the agency invokes the exception, at which point the question becomes whether the correction was made in time. That is a narrower and more factual dispute, and it is usually resolved by dates.
Good faith as a penalty factor
The third appearance is the weakest and the most commonly available. In setting a paperwork penalty, consideration is given to the size of the business, the good faith of the employer, the seriousness of the violation, whether the individual was an unauthorized worker, and the history of previous violations. Good faith here does not excuse anything. It moves a number within a range.
Because it is a factor rather than a threshold, partial credit is possible. An employer whose procedure was sound but unevenly applied at one site can argue good faith on the strength of the procedure while conceding the failure. That is a realistic argument, and it is usually more persuasive than an all-or-nothing claim that nothing went wrong. The way the factors operate on a calculation is described in how a paperwork penalty is calculated.
An adjudicator assessing good faith looks for a written procedure, evidence that the people completing forms were trained on it, and a record of internal review with corrections annotated when they were made. An employer that produces those documents is arguing from evidence. An employer that produces a witness willing to describe its intentions is arguing from assertion, and the two carry very different weight.
What forfeits the protection
The categorical forfeiture is the pattern or practice exclusion, which removes the technical failure provision from an employer that has engaged or is engaging in a pattern or practice of unlawful hiring or continued employment. It operates on the employer as a whole, so an employer within it cannot rely on the provision even for defects that have nothing to do with the underlying conduct.
The practical forfeiture is alteration after the fact. Backdating, concealed changes, and entries recording an examination that did not occur are not paperwork failures; they are affirmative acts that speak to honesty. Their effect is disproportionate to the underlying error, because they replace a discussion about administrative capacity with a discussion about candor. Where an employer is uncertain whether a proposed correction crosses that line, a substantive violation attorney is worth consulting before the pen touches the form rather than afterward.
Building the record before it is needed
Every version of good faith is assessed from a record created before the inspection. That record consists of a written policy, dated training material and attendance, a defined owner of the process, and evidence of periodic internal review with corrections properly annotated. None of it can be constructed after a notice arrives without the construction being obvious.
That is the strongest argument for the internal review described in running an internal audit before the government does, and for the wider structure set out in building a compliance program that survives an audit. The exercise finds and fixes errors, which is useful. What it also does, and what matters more when a penalty is being argued, is generate contemporaneous evidence that the employer was paying attention.
Points to carry away
- Good faith compliance with the verification procedure establishes an affirmative defense to a charge of hiring an unauthorized worker.
- The defense addresses the hiring charge and does not excuse a defective or missing form.
- A separate provision treats a good faith technical or procedural failure as compliance unless the employer declines to correct after notice.
- Good faith is also one of five factors adjusting the amount of a paperwork penalty.
- An employer engaged in a pattern or practice of unlawful employment cannot rely on the technical failure provision at all.
Questions readers ask
Is good faith a state of mind or a set of actions?
It is assessed from actions. No adjudicator can inspect an employer's intentions, so the inquiry proceeds from what the employer did: whether a procedure existed, whether staff were trained on it, whether errors were caught and corrected, whether the employer responded when told of a problem. An employer with a written procedure, records of training, and a history of self-correction can show good faith from documents. An employer whose only evidence is its own assertion is asking for a finding that the record does not support.
Does relying on a third-party service establish good faith?
Not by itself. Delegating completion of the forms to a staffing agency, a payroll provider or an electronic vendor does not transfer the employer's obligation, and a vendor's failure is the employer's failure. What can support good faith is the employer's own oversight of the vendor: a written scope of work, sampled review of the vendor's output, and a record of problems raised and fixed. Delegation with no oversight tends to establish the opposite, because it shows the employer never checked.
What conduct forfeits the protection most reliably?
Altering records after the fact. Backdating a form, filling in an omitted certification date with the date it should have carried, or concealing a change with correction fluid all convert an administrative failure into evidence about the employer's honesty. The enforcement guidance treats evidence of backdating as a circumstance in which even a warning notice should not issue. A pattern or practice of unlawful hiring is the other categorical forfeiture, and it removes the technical failure provision outright.
Sources
- 8 U.S.C. § 1324a — Unlawful employment of aliensContains the affirmative defense for good faith compliance, the technical failure provision and the pattern or practice exclusion.
- 8 C.F.R. § 274a.4 — Good faith defenseThe regulation implementing the affirmative defense and stating its scope.
- 8 C.F.R. § 274a.10 — PenaltiesLists good faith among the five factors considered in setting a paperwork penalty.
- ICE — Form I-9 InspectionStates the circumstances in which a warning notice should not be issued, including evidence of backdating.
- 8 C.F.R. § 274a.1 — DefinitionsDefines pattern or practice and the knowledge standard the defense operates against.
- 8 C.F.R. § 274a.2 — Verification of identity and employment authorizationSets the procedure with which the employer must have complied for the defense to arise.
Pinnacle Law Review 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.
More in Workplace Immigration
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While a verification mismatch is being contested, an employer may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against the worker because of the mismatch. The standstill lasts until the case reaches a final result. Ordinary personnel decisions unconnected to the mismatch remain available, but the employer carries the burden of showing that the decision had an independent basis.
Technical Failures You Are Given Time to Correct
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