Lessons Learned While Negotiating a Settlement of ICE Fines

Having the unfortunate experience of negotiating settlements of fines imposed by ICE following an inspection, Ive experienced a few things, some of which are similar to others experiences (as I have read) and some perhaps not, which I share below:

  • Following an inspection but prior to the issuance of a Notice of Intent to Fine (NIF), consider reaching out to your local ICE attorney and determine if negotiations may occur pre-NIF.  My most recent negotiation involved a pre-NIF negotiation.  What I was told is that the ICE attorney had more flexibility to negotiate prior to the issuance of the NIF.  It seems logical, and based on my experience, I believe it to be true.  I would negotiate pre-NIF again given the opportunity.
  • Of course the fines may be reduced and the reduction does not have to make sense.  While it may be helpful to find arguments to support the reduction (such as errors in the NIF), ICEs settlement number does not have to correlate in terms of the math and the schedule of fines.  In other words, I have found the process to be similar to negotiating a settlement of a lawsuit the numbers can be a little arbitrary, as long as there is a dispute going on.
  • ICE may be willing to stretch out payments as long as 72 months, and based on the very low applicable interest rate, thats a deal!
  • Dont agree that the settlement will bind all related entities or a particular individual such as the owner.  It should only bind the employer that was the subject of the inspection.
  • ICE can agree to not issue a press release, although it cant agree not to respond to inquiries or requests about the settlement.  Avoiding a press release may be of value to you.

Its not a pleasant process, but with some help, you can make the best of the negotiation and get the best deal you can.

You Can’t Do Indirectly What You Can’t Do Directly

The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you cant do directly.  Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency.  It didn’t work.

The issue isn’t uncommon.  During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work.  Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or suspect documents.  These employees may be terminated as a result.   When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.

Ive been asked, Can we have these terminated employees go work for a temp agency and come back to work for us?  The answer is, Absolutely not!  The employer already has actual knowledge that these individuals are unauthorized.

The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important.  Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., constructive knowledge) that such individuals are unauthorized.

What should employers do?

  • Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
  • Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.

 

Lessons Learned for Employer Following ICE Notice of Intent to Fine

Recently, we assisted a new client who had received a Notice of Intent to Fine from ICE following an I-9 inspection.  It was a sad situation.  This client had a slim profit margin and the amount of the fine was potentially devastating to the business.  It’s rare that we have a client cry in an initial meeting regarding I-9s like this one did.  (We certainly have had many who have wanted to cry or had reason to).

Fortunately, after we reviewed what the client had submitted to ICE through the inspection process, we were able to make some arguments and negotiate to reduce the fines by almost 50% and obtain a reasonable payment plan.

From this experience, here are some lessons this employer learned the hard way.

  • It is impossible to correct I-9 deficiencies after ICE comes knocking.  Once ICE serves its Notice of Inspection, you only have three business days to respond.  Besides not having time to make corrections in that short time period, ICE may not view such corrections as valid because they happened after the Notice of Inspection occurred.  So, get your I-9s completed and corrected before you are audited.
  • Calling an attorney after you are issued a Notice of Intent to Fine is like calling a plumber after your house is flooded.  The plumber may be able to fix the problem going forward, but most of the damage is already done.
  • Some fines can be avoided if you know the rules relating to technical and substantive violations, how to properly correct I-9s, the benefits of presenting copies of the documents associated with the I-9s, and the significance of no-match letters.  If you are going to rely on the ICE auditor to teach you, just forget it, which brings me to the last lesson….
  • The ICE auditor is not your friend.  She may say that education and compliance is the main goal, but you will be fined if a fine is possible.  She may even say that you should not worry about being fined during the process, and then fine you anyway.

Our client still benefitted by obtaining counsel after receiving the Notice of Intent to Fine.  We could have done so much more, though, had we been involved prior to and during ICE’s inspection.

The Key to E-Verifys Lock Out Enhancement

The U.S. Citizenship and Immigration Services (USCIS) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers.  Basically, USCIS will lock social security numbers that appear to have been fraudulently used.  If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (TNC), which then will require the employee to contest the TNC at a local Social Security Administration field office.

Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged.  Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.

Combating identify fraud is something everyone can support, but here are the  bad news for E-Verify employers.  Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employers I-9s and other work authorization processes.

So, here is the key to the lock out.  Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card  as a List B document, pay close attention and make sure it appears to be genuine.  (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.)  If its reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.

E-Verify employers who ignore or dont even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake.  It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money.  Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.

Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC  likely will be considered document abuse.  As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.

 

Government Shutdown: Impact to Employers Immigration Compliance Efforts

The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdowns impact.

First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:

  1. Lack of access to E-Verify
  2. The inability of individuals to apply for visas at U.S. Consulates;
  3. The inability of employers to obtain certified LCAs  for H-1B petitions;  PERM labor certifications and prevailing wage determinations.
  4. The inability of individuals in obtaining replacement Social Security Cards.
  5. ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.

Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.

US Department of Homeland Security

USCIS Immigration Benefits

As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions.   Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointments as scheduled  and to call 1-800-375-5283 with questions.

E-Verify

Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, query new hires, view or take action on any case, add, delete or edit user IDs, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed.  In its most recent alert, E-verify provides the following practical guidance:

  • The three-day-rule for new E-verify cases is suspended until further notice.
  • The timeframe for resolving TNC (FAN) will be extended. The days the government is shut down will not count towards the 8 day deadline.
  • Federal contractors need to contact contracting agent to inquire about extending deadline for compliance.
  • Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.

Customs and Border Protection

CBP will continue to operate, as its mandate is deemed an essential function of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP  is giving a furlough to more than 10 percent of its staff.

US Department of State

At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous  shutdowns, business reasons have not qualified for emergency visa processing.

US Department of Justice

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.

Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, check here.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.

US Department of Labor

Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.

OFLC’s web site, last updated September 26, 2013, announced that OFLC will neither accept nor process any applications or related materials (such as audit responses) LCAs, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.   OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online account.

This will result in delays and will likely prevent an an employers ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.

Social Security Administration

SSA personnel will continue to perform essential services  like issuance of checks for beneficiaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.

We will continue to update our readers as more information becomes available.