Negotiate with ICE – Reduce Those I-9 Fines!
[Editor’s Note: Today’s Practice Guide for Attorneys is courtesy of Sharon Mehlman and Kimberley Best Robidoux of Larrabee | Mehlman | Albi | Coker LLP, San Diego, California.]
If none of your clients have received a Notice of Intent to Fine (NIF), congratulations! When you do receive your first NIF from a client or a potential client, the process can be overwhelming for the client and for you as counsel. If you are retained at the NIF stage as attorney (as we have on a few cases), actions taken by your client and by ICE from the NOI (Notice of Inspection) to the NIF can have a significant effect on the process moving forward. Remember there is still time to negotiate at this stage. The fine amount listed is only a starting point.
Your client gives you a multipage document from ICE… How do you get started? How do you prepare your response? Strategies may vary based on case specifics and geographic location. However, based on our own experiences, we have these recommendations:
1. Keep photocopies of all of the I-9 forms and all correspondence and documents turned over to ICE since the issuance of the NOI. Document any discussions with the ICE agent or auditor during the process. This may be all that you have to defend your client against allegations in the NIF.
2. Always ask for an OCAHO (Office of the Chief Administrative Hearing Officer) hearing. When the NIF is served, requests for OCAHO review must be filed within 30 days. If circumstances merit a withdrawal, you may do so since you are not legally bound to proceed with an OCAHO hearing by sending in this request at the NIF stage. (In our experience, ICE has little incentive to negotiate with you if you haven’t requested the possibility of OCAHO in the future.)
3. Be organized. Preparing a legal brief is important when there are multiple counts and/or employees involved. A legal brief makes it easier to focus on particular issues and allows the Office of Chief Counsel (OCC) to agree or disagree with specific arguments more readily. Finally, if you have to eventually take the case to OCAHO, your legal brief is well on its way.
4. Be methodical. Go through each named count and each employee methodically. Review the audit spreadsheet if you were provided one (varies by office and auditor). For each employee and count, decide if you want to agree with ICE’s allegation or deny the allegation. When ICE is correct on a specific issue, a good strategy may be to agree to that point and focus on other points that are not so clear. This goes a long way towards showing good faith.
5. Consider the following legal rebuttals when reviewing each count and employee:
- Form I-9 Required? An I-9 form may not have been required because the individual was an independent contractor, was an employee of the foreign company only visiting the US, was hired before November 6, 1986, or is not considered an “employee” because they are the company owner (amongst other legal arguments).
- Retention Period? Is ICE requesting an I-9 form for a terminated employee that is outside the retention period? Even though they could make such a request, based on statute of limitations, ICE’s public stance has been to focus on the 3/1 rule. However, unrepresented employers often will turn over to ICE all of the I-9 forms in their possession if asked, when in fact many of those I-9 forms could have legally been purged.
- Correct count? Is ICE charging the client under a correct count? Is it really failure to prepare or failure to present? Knowingly hiring or continuing to employ? Failure to complete forms correctly?
- Substantive or Technical Error? Is ICE correctly charging your client with only substantive errors or uncorrected technical errors (that your client was previously given an opportunity to correct?) In addition, is ICE’s distinction as to what is substantive and what is technical consistent with their “Worksite Enforcement: Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties” published November 25, 2008 with a subsequent update July 13, 2009 (“2008 Guidance”) as well as other guidance available?
- Just the facts. Do the facts accurately reflect what occurred?
6. The Five-Factor Test. Be prepared to argue the “Five Factors” to mitigate fines spelled out in ICE’s 2008 Guidance. NIFs can be drafted in different ways but they often will just state that the fine is being enhanced by X% (they may or may not even state the factor). ICE doesn’t always tell you their reasoning. Go through the 2008 Guidance first and review the bullet points under each factor. See if you can argue in your client’s favor. In addition, review the OCAHO cases to see how Judge Ellen Thomas interprets these factors and use these in your argument as well. In our experience, ICE usually won’t allow you to mitigate below the statutory minimum, but it doesn’t hurt to ask.
7. Read prior OCAHO decisions. If you are responding to a NIF or even dealing with every day advice regarding worksite enforcement, you should read the OCAHO decisions. While not binding on ICE, ICE does review those cases and will often review its own policies based on the decisions. To the extent that a decision is on point, it is always a good idea to mention it. ICE may agree with you!
8. Review the regulations, and existing guidance memos/documents for exactly what they say and don’t say. Sometimes you are able to easily respond to an allegation by just pointing out the regulation.
10. Make a counter-offer to ICE. While some may disagree, we have found that counter-offers let ICE know that your client is willing to discuss and negotiate rather than give a flat “NO” that closes the door. When sending your response to OCC, allow a reasonable period of time for a response before following-up. Hopefully, you will be able to reach an agreement with ICE as to the fine. While your client may still be fined, the amount or the specifics (e.g. press release or no press release) may be much more manageable. Finally, if you really can’t come to an agreement and your client is willing, you can always go to OCAHO.