By Bruce Buchanan, Sebelist Buchanan Law
The issue always arises as to whether it is worthwhile to negotiate with Immigration and Customs Enforcement (ICE) after it issues a Notice of Intent to Fine (NIF) to an employer. In my opinion, it is almost always worthwhile unless the fine amount is less than several thousand dollars.

However, in order to negotiate over the penalty, one must notify the ICE attorney in writing within 30 days of the NIF that you wish a hearing on the matter. That does not mean there will be a hearing but it preserves the employer’s right to a hearing before Office of Chief Administrative Hearing Officer (OCAHO) if a negotiated reduction in the penalty cannot be reached.
There are a number of items to review in the NIF to determine whether ICE committed any mistakes in their calculations. These possible mistakes are related to substantive errors on the I-9 forms and/or the alleged presence of undocumented workers. These are some of the areas to review:

(1) Failure to accurately count the three business days for the employer signing section 2. This is sometimes caused by the ICE auditor looking at employee’s signature date and determining more than three days passed from the employee’s signature to the employer’s signature. However, if the employee signed the I-9 form before his first day of work, then more than three days is allowed.

(2) Timeliness violations concerning the completion of Sections 1 and 2 which are beyond the 5-year statute of limitations. If so, there is no violation.

(3) Was the error technical? If so, was the opportunity to correct it provided?

(4) Is the individual without an I-9 form an owner with meaningful authority? If so, no I-9 form is needed. Many ICE auditors miss this one.

(5) Are any of the I-9 violations beyond the scope of the Notice of Inspection (NOI) because they were terminated employees not covered by the NOI? If so, those employees are not covered by the NOI. Employers may prevent some of these issues by timely purging I-9 forms.

(6) Are any employees grandfathered in, hired before 11/7/1986; thus, they do not require an I-9 form.

(7) If the NIF alleges hiring undocumented workers, did the employer have knowledge of their undocumented status? ICE cannot rely on a Notice of Suspect Documents; rather, they must prove actual or constructive knowledge.

(8) Are the five factors appropriately applied for 5% aggravating/mitigating penalties:

(a) Size of business

(b) Good faith/bad faith - ICE cannot use a poor rate of compliance as bad faith. Also, one cannot use cooperation in the NOI investigation to show good faith.

(c) Seriousness of violations - This is difficult for an employer to win, especially if no I-9 forms or no status boxes were checked.

(d) Whether any employees were unauthorized - ICE usually treats as neutral but OCAHO often awards 5% mitigation.

(e) History of previous violations - ICE usually treats as neutral but OCAHO will sometimes award a 5% mitigation

Besides these factors, an attorney should review the client’s financial situation. If the client has been operating at a loss, the attorney should request financial records from his client, preferably audited, to substantiate the poor financial condition and provide the records to ICE. If one can establish a poor financial condition, the attorney can argue for a large reduction of the penalties and a payment plan – two to five years, depending on different factors.

There may be other factors to review in the NIF. It all depends on the individual case. But, overall, in my opinion, it is worthwhile to carefully review the NIF and seek an appropriate reduction in the penalty. The ICE attorney is aware if the case is litigated before OCAHO, in most cases, OCAHO will substantially reduce the penalty. Thus, they have an incentive to reach a negotiated penalty.