20 Years Later: The Virtue Memo and ‘Good Faith’ Still Critical to I-9 Compliance

Roy Maurer By Roy Maurer April 14, 2017

​Paul Virtue, a partner at law firm Mayer Brown in Washington, D.C.

The impact the "Virtue memo" has had on employers verifying new hires' work authorization over the last 20 years is inestimable.

Paul Virtue, a former general counsel at the Immigration and Naturalization Service (INS), drafted the guidance in 1997 while serving as the executive associate commissioner of the INS Office of Programs.

The memo's guidelines have directed immigration officers on enforcing the good-faith compliance section of the Immigration and Nationality Act (INA) over the last two decades and are the basis for worksite enforcement investigations today. The guidelines were designed to protect well-intentioned employers that make infrequent paperwork errors. It has significantly reduced the penalty burden on employers that make technical errors during the employment verification process and saved companies millions of dollars in fines that would have been assessed for technical violations.

SHRM Online talked with Virtue, now a partner at law firm Mayer Brown in Washington, D.C., about the basic provisions of good-faith compliance in employment verification and the impact the memo has had on employers.

 [SHRM members-only toolkit: Complying with Form I-9 Requirements]

SHRM Online: What was life like for employers administering employment verification before Section 274A(b) of the INA was amended to include the good-faith compliance subsection?

Virtue: Before the INA was amended, employers were held to a strict liability standard, even with regard to minor paperwork violations. The Immigration Reform and Control Act of 1986 [IRCA] made it unlawful for an employer to hire or continue to employ an alien knowing that he or she is not authorized to be employed in the United States. Under IRCA, the employee must complete Section 1 of the Employment Eligibility Verification Form (Form I-9) at the time of hire. Within three business days of the date of hire, the employer must physically examine documentation that establishes the identity and employment authorization of the employee, and must complete Section 2 of the Form I-9 by recording the document name, identification number and expiration date—if any—in the appropriate space in Section 2.

It was considered a paperwork violation if, for example, the employee failed to provide a maiden name or to date his or her attestation in section 1 or the employer transposed a document number in section 2. Such errors were incorporated by INS officers into notices of intent to fine [NIFs]. No opportunity was afforded under the law for the employer to correct these minor errors.

SHRM Online: How did the amendment and your memo covering its enforcement change that?

Virtue: The Illegal Immigration Reform and Immigrant Responsibility Act [passed by Congress and signed by President Bill Clinton in 1996] amended the INA and included a good-faith provision introduced by the late Congressman Sonny Bono, who was frustrated at being hassled by INS officers over minor errors on his restaurant's I-9 forms.

The amendment granted employers charged with employment eligibility verification violations under IRCA a period of 10 days to correct technical or procedural paperwork infractions. As the Bono amendment did not define technical and procedural errors, it was left to the INS Office of Programs—the office I headed—to provide guidance to enforcement officers on implementation of the new provision.

We issued what came to be known as the Virtue Memorandum to INS field offices on March 6, 1997. The memorandum provided guidance to officers conducting an I-9 inspection that any technical or procedural failures on the part of an employer who has attempted in good faith to comply with the statute should not be included in a NIF until the employer has been notified of these failures in a Notification of Technical or Procedural Failures letter, and has been given a period of at least 10 business days to correct these failures. If these failures are corrected within the 10-day period, the employer will be deemed to have complied with the law, and no sanctions will be imposed.

SHRM Online: What are some examples of technical errors covered under the guidance?

Virtue: Examples of technical or procedural errors in Section 1 of the Form I-9 include a failure to ensure that:

  • The employee provides a maiden name, address or date of birth.
  • The employee provides an Alien Registration Number, if this number is provided in Sections 2 or 3, or in a legible copy of a document presented for inspection and retained with the form.
  • The employee dates this section at the time of hire. 

Section 2 examples include a failure to:

  • Provide the title, identification number, and expiration date of proper identity and employment authorization documents, but only if a legible copy of the document is retained with the form and presented at inspection.
  • Provide a title, business name and business address.
  • Provide the date of hire in the attestation portion of the form.


SHRM Online: When are an employer's actions not considered to be in good faith?

Virtue: The employer will be presumed to have acted in good faith unless:

  • The technical or procedural error was committed to avoid a requirement of the act.
  • The failure was committed in knowing reliance on the good-faith provision.
  • 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 attempted correction contains false, fictitious or fraudulent statements or material misrepresentation.
  • The employer prepared the Form I-9 with knowledge or in reckless disregard of the fact that the form contains a false, fictitious or fraudulent statement or material misrepresentation.
  • The type of failure was previously the subject of a warning notice issued by INS, contained in an NIF or a Notification of Technical or Procedural Failures letter. 

Perhaps the most important takeaway for HR is the importance of photocopying and maintaining copies of the identity and employment authorization documents presented by the employee, as many of the errors are considered technical and procedural only if a copy of the relevant document is appended to the I-9. Just as important to demonstrating the necessary good faith, however, is ensuring that personnel responsible for completion of the Form I-9 are properly trained.

SHRM Online: What has the impact of the memo been for employers since you first wrote it?

Virtue: The Virtue memo became effective approximately midway through fiscal year 1997. Since then, Immigration and Customs Enforcement, the Office of the Chief Administrative Hearing Officer and the federal courts continue to look to it for guidance.

While it is difficult to calculate the empirical impact of the good-faith amendment and the implementing regulatory memo, the number of warnings to employers in fiscal year 1997 [733] increased 10 percent compared to the number that were issued in 1996.

This was likely due, at least in part, to supervisory officers preferring to issue warning notices with regard to technical and procedural errors rather than add them to the NIF. At the same time NIFs [862] decreased by 15 percent.

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