Time is of the essence if you receive a Notice of Inspection from ICE for your I-9 forms in order to retain a skilled defense attorney.
ICE inspection notices require that the I-9 forms be produced for ICE within three business days. Contact immediately an attorney who has handled I-9 audits in the past so he or she can take control of the response and make sure that you do not act in a way that is harmful to your business. Gibbs Houston Pauw has handled many such cases, from small restaurants to Fortune 500 companies, and obtained sizeable fine reductions. GHP can handle these cases anywhere in the United States.
Begin by gathering up all the I-9 forms and supporting documents and checking against your employee list to make sure no documents are missing. Be sure to make copies for your files of all the I-9 forms that are to be provided; best practice is to number all the documents for tracking.
Carefully review the scope of the ICE inspection request.
The Notice of Inspection and subpoena may ask only for documents relating to the current employees, or it may ask for documents related to employees for the past three years, or some other formulation. The inspection may only seek documents related to a particular location of the employer, rather than all locations. Do not assume that ICE is seeking documents for all locations where that is not specified. Because each defective I-9 can result in a fine up to $1100, it is best to produce only the I-9’s that are requested.
Do not neglect to file a request for hearing for a Notice of Intent to Fine (“NIF”) in order to get the lowest fine amount.
The Notice of Intent to Fine is usually the last notice issued by ICE, once they have analyzed your I-9 compliance. You have 30 days to file a request for hearing to an Administrative Law Judge (ALJ)at the Office of Chief Administrative Hearing Officer. This is the best place to get a substantial fine reduction, as ICE has limited negotiating authority. ALJ Ellen Thomas hears all these cases at present and often reduces the fines that ICE has proposed by 40-60%, especially for small businesses or companies that have been losing money or making only small profits. She often compares the amount of the proposed fine with the company’s revenues or profits and imposes a lesser fine amount.
Potential fines can be substantial, but the administrative judge often reduces them after taking an appeal.
ICE can seek fines of up to $1100 per defective I-9 form for any employees over the past three years. If your company has a high turnover rate, the fine could be hundreds of thousands of dollars for small but repeated errors. ICE calculates fines using a matrix based on the percentage of defective I-9 forms, regardless of how serious the errors are. The fine imposed should be sufficient to obtain compliance while not being an undue hardship to business, but in practice the ICE formula does not take this into account. Gibbs Houston Pauw has obtained substantial fine reductions from ALJ Thomas. She does not consider the ICE formula as controlling her judgment and often reduces the fine imposed by ICE.
Do not backdate I-9 forms that are supplied to ICE.
Some employers try to remedy their defective I-9 forms before providing them to ICE, by supplying missing information or signatures. ICE is on the lookout for this. The ALJ will not look kindly on this kind of action when she determines a fine amount.
Prior to an I-9 audit, train and supervise your staff to properly complete, review, and retain the I-9 forms.
The most common errors on I-9 forms are failure of the employee to check a status box, failure of the employee to sign and date the I-9, failure of the employer to list the required details of acceptable documents in Section 2, failure of the employer to sign and date the I-9, failure of the employer to re-verify when work authorization card expires. Too many employers fail to understand the sizeable fines that can result from these errors, and do not insure that staffs are properly completing the I-9’s. Few employers have developed a reliable system to properly and securely purge I-9 forms of former employees. The I-9’s must be retained a minimum of three years, or one year from the date of termination, whichever is longer. Company I-9 protocols should be reviewed and audited at least annually to insure that proper procedures for completing the I-9’s are in place.