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By: Bruce Buchanan, Sebelist Buchanan Law
In U.S. v. International Packaging, Inc., 12 OCAHO no. 1275 (2016), the Office of Chief Administrative Hearing Officer (OCAHO) found International Packaging, Inc. (IPI) committed 94 of the 95 Form I-9 violations alleged. In so doing, OCAHO faced an interesting issue - whether the employer had to provide supporting documents with the I-9 forms when the I-9 forms were subpoenaed but supporting documentation was requested in the cover letter, not the subpoena.
Notice of Inspection and NIF
IPI was served with a Notice of Inspection and subpoena on February 17, 2011. On February 23, 2011, IPI produced some but not all of its I-9 forms, inadvertently failing to produce 21 Form I-9s. IPI contends it had an agreement to produce the I-9 forms by March 2 but concedes it did not provide the 21 Form I-9s at that time either.
ICE states it did not even learn of the existence of more employees until it examined IPI’s payroll records. After ICE requested nine of the 21 Form I-9s – all current employees – IPI complied.
On August 16, 2011, ICE issued Notice of Intent to Fine (NIF). ICE alleged in Count I that IPI failed to produce 21 Form I-9s, and in Count II alleged that on 67 occasions, the company failed to enter certain data, such as document title, identification number or expiration date, in Lists A, B or C of Section 2. IPI failed to present any documentation attached to the I-9 forms. Thus, ICE asserts these are substantive errors, not technical ones, citing the Virtue Memorandum. IPI asserts that the supporting documentation was requested in a cover letter, not a subpoena; thus, ICE had “insufficient process” to allege these violations where the documentation, if presented, would have established these errors were technical.
IPI cites to 8 C.F.R. § 274a.2(b)(3), which does not require the supporting documentation to be kept with the I-9 forms. It asserts it offered to provide ICE with the verification documents and ICE should have accepted them and given IPI 10 days to cure the technical violations.
Furthermore, IPI’s attorney, DeAnne Hilgers, states she was told by ICE agents at a Federal Bar Association conference in Chicago that “requesting supporting documents in a cover letter is not consistent with standard ICE practice.” IPI stated it did not provide the supporting documentation for the I-9 forms because the subpoena did not request such, and an attorney had previously told them only to provide what was requested. However, the cover letter clearly requested any supporting documentation. ICE responded “nothing in the statute or regulations requires the issuance of a subpoena as the only means of obtaining documents from an employer.”
OCAHO sided with ICE on this argument and found nothing in the Virtue Memorandum requires an employer to copy and provide documents; rather, it is simply an affirmative defense. OCAHO found there was no conflict between 8 C.F.R. § 1324a.(b)(3) and the Virtue Memorandum. In this case, the employer did not provide the supporting documentation with the I-9 forms to ICE; therefore, the errors in Lists A, B and C were substantive. Furthermore, OCAHO found ICE is not required to ask for any supporting documentation; it is up to the employer to provide such and raise as an affirmative defense.
Due to these findings, OCAHO found all 67 allegations to be violations in Count II. OCAHO set a later filing date as to the parties’ arguments on the amount of penalties.
Although an employer has an affirmative defense to some errors in Section 2, Lists A, B and C so that the errors will be viewed as technical and can be cured without a penalty, it is incumbent on the employer to provide the supporting documentation with the I-9 forms, regardless of whether they were requested in a subpoena, Notice of Inspection, or cover letter, or not requested at all.
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.