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By Bruce Buchanan, Siskind Susser
At a recent FBA Conference in Chicago on Worksite Enforcement, there was a panel discussion on negotiating with Immigration and Customs Enforcement (ICE) during an inspection – hosted by attorneys Sharon Mehlman, Marcine Seid, and Eileen Momblanco. In this article, I will elaborate upon some of the talking points from that discussion and other negotiation strategies.
During an investigation by ICE, after receipt of a Notice of Inspection (NOI)/subpoena, there are several opportunities to negotiate with the agency.
Negotiating Point #1 - Subpoena
The first negotiable is the date by which the I-9 forms must be provided. The NOI states the I-9 forms and other subpoenaed documents must be provided to ICE within three business days of service of the NOI. Often times, however, a short extension of up to 10 days can be obtained if counsel contacts the ICE officer or auditor on the case and provides an appropriate reason for the extension (e.g. small HR staff; thousands of I-9 forms, counsel was just hired, etcetera). The decision to grant an extension is discretionary, and some ICE offices refuse to grant any extensions.
Negotiating Point #2 – Notice of Suspect Documents
If a company receives a Notice of Suspect Documents (NSD), after supplying the I-9 forms, it used to be common practice to negotiate what was a “reasonable” period to resolve the work status of those on the NSD. Now, all NSDs state the employer has 10 days to do so. In a liaison meeting with the American Immigration Lawyers’ Association (AILA), ICE stated that the 10 days is not a national policy although many regions treat it as such. However, in other regions this 10-day period is negotiable if the employer can show the impact that the loss of unauthorized employees will have on U.S. citizen employees and/or the community (e.g. the facility will be forced to shut down due to a lack of employees).
Negotiating Point #3 – Notice to Employees
On some occasions, ICE will negotiate a “roll-out schedule” for notification of employees listed on the NSD. After receipt of the NSD, the employer notifies those employees that ICE has determined their work authorization is invalid, and requests documentation from the employee to rebut ICE’s finding. With a roll-out schedule, the employer does not have to notify all employees on the NSD at the same time.
Negotiating Point #4 – Proposed Penalty Amount
The proposed penalty amount set forth in the Notice of Intent to Fine (NIF) is the most important point to negotiate. Before starting negotiations, counsel must inform ICE in writing that they wish to have a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). If counsel fails to do so, then the NIF will become final in 30 days.
Most ICE attorneys are amenable to negotiating a reduction in the proposed penalties. There are a number of arguments that counsel can make for a reduction, such as:
ICE listed technical error as a substantive error;ICE incorrectly applied the five mitigating/aggravating factors;ICE counted an employee twice in the NIF;for timeliness violations – beyond the five year statute of limitations;the company was not required to have I-9 form because the individual is an owner with substantial control or was hired on November 6, 1986 or beforehand;math errors by ICE; andfor poor financial condition of the company established by financial records (this is a powerful tool for reducing the amount of the penalty and lengthening the time to pay the penalties – sometimes up to five years).
Negotiating Point #5 – Press Release
The last negotiable item is the press release and whether ICE is going to publicize the settlement of the matter. However, in many parts of the United States, ICE never issues a press release for settlements.
It is important to engage immigration compliance counsel as soon as a company is served with an NOI. As shown above, legal counsel can help to lessen an employer’s burden, avoid common pitfalls and negotiate at numerous points during the ICE inspection process.