If you are awaiting the results of a recent ICE I-9 audit, you could be in for a shock when served with the ICE Notice of Intent to Fine (NOIF). The latest range revisions were published in the Federal Register of February 3, 2017, and will apply to all I-9 and knowing hire/continuing to employ violations issued on or after that date. Unfortunately, ICE has not yet published updated fine matrices. The attached I-9 paperwork violation matrix extrapolates from the matrix in effect prior to August 1, 2016, and report projected base fine amounts applicable in first, second, and third violation cases based on the overall percentage of substantive and uncorrected technical violations alleged to be present for the covered active and terminated employee populations. ICE may adjust the base fine amount by a maximum of 25% per alleged violation, based on evidence of mitigating or aggravating factors.
Employers served with a NOIF have 30 days to request a hearing in writing before an administrative law judge within the Office of the Chief Administrative Law Judge (OCAHO), Executive Office of Immigration Review, U.S. Department of Justice. If an employer fails to make a timely request for a hearing, the NOIF will mature into a final agency order, enforceable in federal court. If a hearing request if made, the request stays the effect of the NOIF, and presents an opportunity for the employer to negotiate amendments to the alleged violations and reductions in the proposed fine amounts. If settlement negotiations fail, ICE must file a complaint with OCAHO to initiate the hearing process. OCAHO procedural rules govern pleadings, discovery, motions, and hearing practice. The Attorney General has authority to review and revise orders issued by ALJs in I9 and employer sanctions fine cases. Once finalized, the employer may file a petition for review with the federal appeals court holding jurisdiction over employer’s worksite.
The Trump Administration’s “take no prisoners” style for enforcing immigration violations, coupled with the dramatic increase in fine levels over its predecessors, will no doubt make for big headlines in the coming months. The best advice for employers is to make sure that they have adequate I-9 processing and updating controls in place, having adequately trained and retrained I-9 preparers, and have reliable audit procedures to capture and correct substantive violations before ICE serves them with an audit notice. The investment in I-9 compliance policies, training, and audit measures is well worth the cost, given the stepped up risk of high six figure fines, adverse publicity, and disruptions to the workforce.