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.