When you receive your first Notice of Intent to Fine (NIF) from a client or a potential client, the process can be overwhelming for the client and for you as counsel. If you are retained at the NIF stage as attorney, actions taken by your client and by ICE from the NOI (Notice of Inspection) to the NIF can have a significant effect on the process moving forward. Remember there is still time to negotiate at this stage. To reduce these fines, it is important to keep photocopies of all of the I-9 forms and all correspondence and documents turned over to ICE since the issuance of the NOI. Document any discussions with the ICE agent or auditor during the process. Always ask for an OCAHO (Office of the Chief Administrative Hearing Officer) hearing and be organized and methodical. Be prepared to argue the “Five Factors” to mitigate fines spelled out in ICE’s 2008 Guidance. Read prior OCAHO decisions and review the regulations and existing guidance documents for exactly what they say and don’t say. Review the M-274 Handbook for Employers, the I-9 Central on the USCIS website, and any other guidance on worksite enforcement for inconsistencies that can be used in your client’s favor, and make a counter-offer to ICE.
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