Requesting Payment Plans from ICE for I-9 Violations and Fines – A Practice Advisory

[Editor’s Note: This is a Special Edition Practice Advisory written by Sharon R. Mehlman, Partner at Larrabee, Mehlman, Albi and Coker LLP.  Reprint of this Special Edition article, in whole or in part, is restricted.  All outlets interested in reprinting this Special Edition article must send advance requests to marketing@lawlogix.com.]

You have a client who is unlucky enough to receive a Final Order to Cease Violations and Pay Fine (Form I-764) from Immigration and Customs Enforcement (ICE). You think that the process is now over and that the client will just write a check to the government. However, your client tells you that it would be a hardship for them to pay the fine all at once. They need to make payroll and pay other expenses … Can they have a payment plan to pay the fine over a period of time? It seems simple enough to request a payment plan, but when I was faced with this situation, it was anything but straightforward. Rather than have other attorneys reinvent the wheel, I am sharing my experience in this practice advisory.

1. Yes, a payment plan is an option. Just finding the answer “yes” was one of the biggest hurdles to overcome. Some ICE attorneys have advised that ICE doesn’t do payment plans. Others have said that that they might do them, but that it wasn’t something to negotiate with ICE but with the Burlington Finance Center (the collector of the money). In other instances, ICE attorneys have engaged in such discussions during Notice of Intent to Fine (NIF) negotiations. As with other I-9 matters, it appears that it really depends on the particular office you are working with. However, assuming you are not able to negotiate a payment plan up front, there are still ways to pursue this option for your client.

2. If you don’t ask, the answer is always no. I was led to believe that ICE only considered payment plans where the fine was significant. While the fine in my client’s case was not significant per se, it was more than my client could afford to pay all at once and they wanted me to ask the question. There was clearly no harm in asking, so don’t let anyone discourage you. The worst they can say is “no.” However, your client needs to be prepared to provide documentation and pay interest on the installments so this option should not be used unless your client really cannot pay the fine.

3. If you are looking for a formal process, there isn’t one. There is very little guidance available but the official way to proceed is through the Burlington Finance Center (BFC). Once you receive the final notice from ICE, you can send a letter to the BFC proactively or wait for the actual invoice from the BFC that should arrive shortly thereafter. On the back of the invoice, it states that if an employer cannot pay the full amount of the fine within 30 days, DHS will consider alternate payment methods including a repayment agreement (This was my first hint that maybe there was still a way to request a payment plan at this stage in the process.)

4. Put the request in writing. Prepare a letter to the BFC that provides the identifying information for your client’s case and respectfully request a payment plan option for your client. The letter should be sent to Burlington Finance Center, P.O. Box 5000, 166 Sycamore Street, Williston, VT 05495. Be prepared to explain why the plan is needed and what the client is willing to pay per month. Note that per the BFC guidance, they will not usually approve a plan where payment is for more than three years. Be reasonable in what you are asking for because there is a discretionary component.

5. If you have questions, call the Burlington Finance Center (phone number: 802-288-7600). Let BFC know that you want to request a payment plan for your client. Have the invoice handy because they will ask for invoice numbers, case numbers, etc. If you don’t already have a G-28 on file, you may need to send one in before they will confirm the process with you.

6. It is now time to wait for Burlington Finance Center (BFC) to make a decision: It may take some time to receive a response from BFC. The first step is for BFC to send the client a request for financial information by asking them to complete a Commercial Debtor Financial Statement. The client will need to be able to show their assets and liabilities and provide specific information on a form provided by BFC. BFC uses this information to determine if the terms requested for the payment plan are reasonable. If BFC agrees to the plan, then an ICE attorney at BFC will draw up the final agreement for review and signature. An interest calculation will be included in the installment payments.

7. Note that the clock doesn’t stop because you are negotiating: ICE usually provides 30 days from the date of the invoice to pay the fine. However, this process of working out a payment plan can take longer than that. It is important to start this process as early as possible. As long as the BFC knows that you are requesting the payment plan, the file is noted. However, a past due notice will still be automatically generated to say that you have missed the payment of the fine and that interest is due. This interest will be added onto any final amount due under the payment plan if approved.

8. Payment under the new plan: Once the final agreement is signed by both parties, the terms are entered into the system and invoices will be generated. The client needs to then pay the amount, on time, by cashier’s or bank check to the BFC.

If a fine is issued against your client for I-9 violations, the cleanest way to proceed is have the client pay it in full. However, if your client is unable to pay the full amount, it is always good to know that they have options.

[Editor’s Note: Thank you Ms. Mehlman for this exclusive Practice Advisory on the CM Guru Blog!  For our attorney readers, you heard it here first!]