Do I Need a Lawyer to Assist My Company with an I-9 Audit by ICE?

A couple of recent decisions by the Office of the Chief Administrative Hearings Officer (OCAHO) demonstrate the importance of timely retaining experienced counsel to represent you and assist you with government I-9 audits.  Enforcement I-9 audits by Immigration and Customs Enforcement (ICE) begin with the Notice of Inspection (NOI).  Anything that you submit or fail to submit pursuant to the NOI can be used against you.  It is therefore critical to contact experienced counsel as soon as you are served with the NOI.

OCAHO Green Lights Legal Representation by Accountant, Business Pays 100% of I-9 Penalty as Determined by ICE

According to the written decision by the Chief Administrative Hearings Officer (CAHO), in U.S.A. v. Chen’s Wilmington, Inc. dba Hibachi Grill Supreme Buffet Restaurant, the Respondent was a restaurant disputing an I-9 fine resulting from an enforcement I-9 audit by ICE. The initial fine as proposed by ICE was $24,543.75. ICE initiated proceedings before OCAHO requesting a civil penalty in that amount. In the course of the proceedings, ICE filed a Motion to Approve Consent Findings, reflecting a settlement agreement with the restaurant admitting all allegations and agreeing to pay 100% of the proposed I-9 fine. OCAHO issued a final decision and order granting the motion and approving the settlement.

Over four months after OCAHO’s order, the company filed an untimely Request for Administrative Review. The newly-retained attorney argued, in part, that the settlement approved by the Court was reached without the benefit of a licensed attorney. Instead, the company had been represented by an accountant.  OCAHO found that because the accountant did not file any documents or appear before the Court on behalf of the company, his assistance did not constitute the unauthorized/unlicensed practice of law (UPL). For this reason, among others, OCAHO denied the untimely Request for Administrative Review and the restaurant was ordered to pay the full amount of the fine.

Contrast Case: OCAHO Reduces I-9 Fine by Nearly 90%

Also this month and in contrast to the Hibachi Grill case discussed above, OCAHO issued a decision in United States v. Foothill Packing, Inc., reducing the fine amount as determined by ICE from nearly $170,000 to $21,560. The attorney for the employer in that case argued that ICE did not allow the company an opportunity to correct a number of errors, as it refused to accept photocopies of documentation retained by the employer in support of the I-9s, which would have rendered a number of the violations technical, instead of substantive. The employer was therefore not provided the required 10 days to correct technical violations, which would not have been considered in calculating the fine amount. OCAHO agreed and reduced the fine amount by almost 90%.  The reduced amount included a penalty for knowingly hiring one individual.

Moral of the Above Cases

The takeaway from the above cases is two-fold:

  1. It is not recommended that you handle I-9 audits by ICE on your own or without the benefit of an experienced immigration attorney. Otherwise, you could end up paying 100% of the proposed ICE fine, similarly to the business owner in Hibachi Grill.  An immigration attorney with I-9 audit experience can come up with legal and factual arguments to either negotiate with ICE for a reduction of the fine, or to convince OCAHO to reduce the fine through the administrative court review process.
  2. If you are not an attorney, you should not attempt to represent employers in I-9 audits. Despite your good intentions, your assistance might prove to be highly detrimental.

The stakes in I-9 audits are very high. When an employer becomes the subject of an enforcement audit by ICE and I-9 violations are discovered, civil fines for simple paperwork violations – even if no undocumented workers are discovered – will range from $110 to $1,100 per I-9 Form depending on the severity of the errors. Penalties for knowingly hiring or continuing to hire undocumented individuals range from $375 to $16,000 per individual. In addition, the company owners, managers and human resources professionals can be held criminally liable for certain infractions.

It is important to have an established procedure for handling government audits of your I-9 Forms and to contact experienced immigration counsel even before becoming the subject of an audit. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider, and financial industries.

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