This article comes from the Society for Human Resource Management.
As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections, employers need to know how ICE calculates fines.
The penalty process may begin for an employer when ICE serves a Notice of Inspection (NOI) subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary depending on the ICE office you are dealing with. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices—Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common.
If substantive paperwork, hiring or continuing-to-employ violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10 percent, ICE usually only issues a warning notice without a penalty. The penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Employers can challenge fines by requesting, within 30 days of receipt of the NIF, that ad administrative law judge of the Office of the Chief Administrative Hearing Officer (OCAHO) review the case. If litigated, the judge can adjust the fine amount and consider any factors deemed necessary to calculate an appropriate fine based on the case at hand.
In November 2008, ICE issued a memorandum which required ICE agents to follow specific procedures for calculating paperwork, hiring or continuing-to-employ fines.
ICE has begun adding the number of paperwork violations to the number of hiring or continuing-to-employ violations as the numerator, which in some cases dramatically increases the level of the fine.
For example, if you have 100 employees with 10 substantive paperwork violations and 20 hiring or continuing-to-employ violations, you’d have 10 + 20 = 30 to calculate 30 percent violations, leading to a fine of $60,270 using the 2017 penalty matrices.
ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures. However, no other ICE-issued documentation instructs agents or attorneys to add the violations together; ICE’s I-9 inspection webpage also makes no mention of the method.
After evaluating these issues and trying to negotiate a settlement, employers must assess whether they should settle with ICE or challenge the fine with OCAHO.
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