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Breaking The ICE: How Employers Can Push Back Against Punitive I-9 Fines

Climate change may make our summers hotter, but the ICEman still cometh. Since late 2017, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspections issued to employers nationwide. This spike in I-9 audits has also resulted in an increase in assessed civil penalties and punitive fines to employers with non-compliant I-9s. While ICE audits and fines are on the rise, this article will walk you through options to assist with breaking the ICE and decreasing assessed fines.  

What Employers Can Expect In 2019 Through The Election

If your business has not yet had an ICE I-9 Notice of Inspection, consider yourself lucky. However, if you think you are in the clear – think again. In the upcoming election year where politics will be dominated by immigration news, ICE will continue to punish employers for failures to complete I-9s properly and maintain a culture of immigration compliance. Driven by a “zero-tolerance” agenda, ICE will likely push for higher penalty amounts, and have less interest in coming to a reasonable settlement amount with most employers.

ICE assesses penalties after an employer receives a Notice of Inspection and ICE completes its I-9 audit; after that, an employer may receive a Notice of Intent to Fine (NIF). This document title speaks for itself – ICE intends to fine the company a dollar amount.

After receiving a NIF, you have two options: (1) request a hearing before the Office of Chief Administrative Hearing Officer (OCAHO); or (2) agree to pay the fine assessed by ICE. Below we will walk you through these two options and the financial impact each can have on your business.

How OCAHO Can Affect Penalty Amounts 

OCAHO sits within the Executive Office of Immigration Review of the Department of Justice, where traditionally an Administrative Law Judge (ALJ) is assigned to adjudicate I-9 penalty hearings. The ALJ follows the same statutory regulations that ICE is required to follow, which includes the following five statutory factors to determine penalty amount: (1) the size of the employer’s business, (2) the employer’s good faith, (3) the seriousness of the violations, (4) whether or not the individual was an unauthorized alien, and (5) the employer’s history of previous violations.

Although the OCAHO ALJ and ICE follow the same five factors in determining penalty amount, the ALJ is not bound by ICE fine amounts. Instead, the ALJ has discretionary authority in considering a company’s financial situation when determining the fine amount. This flexible discretion can impact fine amounts dramatically.

ICE “Fine Matrix” Calculating Penalty Amounts

ICE follows a “fine matrix” – entirely an ICE invention and a ridged matrix tying base fine amounts to the violation percentage. The violation percentage is broken into six levels, with the highest base fine amount when a company’s violation percentage reaches 50 percent (meaning 50 percent or more of an employer’s I-9s were found to be deficient).  

Next, ICE utilizes its “enhancement matrix,” which will either add or decrease to the base fine based upon its audit findings. The aggravating and mitigating factors are the five statutory factors discussed above: business size, good faith, seriousness, unauthorized aliens, and company history. Each of these five factors has a plus or minus five percent (+/- 5 %) to the base fine amount, making the maximum increase +25 % and the maximum decrease -25%

Unlike OCAHO, ICE does not consider the company’s ability to pay or financial health when assessing fine amounts. Therefore, this ridged formula almost always leads to a hefty fine determination because it artificially inflates the base fine amount. ICE has traditionally demonstrated little interest in whether the fine proposal may have a devastating effect on the company. On the other hand, OCAHO ALJs regularly hold that the I-9 penalty should not be unduly punitive.

A Fine Calculation Example

Let’s assume your company received a Notice of Inspection, then presented 100 I-9 forms to ICE for inspection. During the audit, ICE determined that 50 of the forms presented were defective due to sustentative and uncorrected technical violations (uncorrected errors on the form itself). This would result in your company having a 50 percent violation rate. Using ICE’s fine matrix, it would calculate the fine using the highest base fine amount of $1,862 per defective I-9. Therefore, you would be facing a base fine already at $93,100 before factoring the aggravating and mitigation factors.

After ICE takes into account the aggravating and mitigating factors, the final fine amount will stand somewhere between $69,825 (base fine -25%) and $116,375 (base fine +25%).    

This simple example demonstrates how ICE’s unforgiving fine matrix artificially inflates the fine amount by setting the 50 percent violation rate as the threshold for the highest fine amount for each defective I-9 form. Even if your business has less than 100 employees, a small amount of defective I-9s can result in a hefty fine proposal.  

OCAHO ALJ Fine Determination History

Unlike ICE, however, OCAHO case law indicates that the ALJ’s fine determination has been far more lenient than ICE’s fine matrix and enhancement matrix. In fact, in a review of the 32 OCAHO I-9 cases from the past four years, not a single OCAHO fine determination resulted in a fine increase. Of the 32 cases, only two cases upheld ICE’s fine proposal without reduction. The other 30 cases allreceived a fine reduction, with the average fine reduction rate at over 40%. By way of example, in the simple example above with your company being assessed a fine from ICE of $116,375, an average OCAHO reduction could reduce this fine to $69,231.

In the most recent 2019 OCAHO case, U.S. v. Intelli Transport Services, the ALJ primarily used the employer’s small size to justify a nearly 80% fine reduction, which reduced the fine amount from ICE’s $21,506 proposal to a mere $4,500. In another 2015 OCAHO case, the dollar amount fine reduction was over $207,000. These cases demonstrate that when ICE’s fine proposal is high enough, there is truly little reason not to push back and litigate the case to the OCAHO.

Conclusion

While many attorneys have negotiated with ICE, few have experience with OCAHO and litigation strategies around reducing ICE proposed fines. If you have questions about ICE, OCAHO, and litigation strategies to “break the ICE,” please contact any member of our firm’s experienced Global Immigration Practice Group or your Fisher Phillips attorney.

For more information, contact the authors at RHua@fisherphillips.com (206.247.7014) orLSobaski@fisherphillips.com (816.460.1237).

 

U.S. Dept. of Labor releasing their ‘proposed’ reforms to the H2-A program

With the (USDOL) U.S. Dept. of Labor releasing their ‘proposed’ reforms to the H2-A program, the public now has until September 24th to submit comments.  A side-by-side comparison has been created to show the current program and what the new rule proposes.  CLICK HERE to review the comparison.  It should serve as a useful tool for any comments that you may wish to submit.  The link to the published rule is:  https://www.govinfo.gov/content/pkg/FR-2019-07-26/pdf/2019-15307.pdf

 

Independent Immigration Courts Needed, Legal Groups Say

Amid a growing crisis, legal associations have called on Congress to pass laws that would remove immigration courts from Justice Department control, emphasizing the inherent conflict of interest.
Four major legal groups are calling on Congress to make changes to the backlogged immigration courts that have buckled under the control of the Justice Department.

The American Bar Association (ABA), the American Immigration Lawyers Association (AILA), the Federal Bar Association (FBA), and the National Association of Immigration Judges (NAIJ) reached out to Congress last week calling on the body to create an independent immigration court system that isn’t managed by the part of the executive branch responsible for prosecuting immigrants.

“As a result, the Attorney General is charged with being both lead prosecutor and lead judge in immigration cases,” the letter, addressed to members of the House and Senate, says. “This inherent conflict of interest is made worse by the fact that immigration judges are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and leaves them particularly vulnerable to political pressure and interference in case management.”

The groups, speaking together on this issue for the first time, noted the significant backlog, which stands at nearly 900,000 cases, and said Justice Department policies limited opportunities for fair hearings and made the backlog worse.

“What exacerbates that is that the Department of Justice has implemented policies that are making it more difficult for the courts to operate efficiently and are increasing that backlog, so those factors are coming together in the confluence of pressure that I believe is being felt more seriously on the Hill than it has in past years,” AILA Director of Government Relations Greg Chen said in comments reported by Business Insider.

The group added that using quotas for immigration judges and tying them to performance reviews meant that they often had “to decide cases under strict deadlines or face potential discipline.”

The associations called for the immigration court to be taken away from the Justice Department’s control and established outside of the executive branch.

The issues raised by the legal groups aren’t new—ABA made a similar call in a report it released in March, and other such recommendations have been made since the 1990s—but the issue is coming to a head during the current immigration crisis, which has also suffered from a shortage of immigration judges.

Recently, the Justice Department announced it would cut the number of in-person translators at court hearings and replace them with videos informing migrants of their rights. This issue further highlighted the concerns of the groups, including NAIJ President Emerita Denise Noonan Slavin, a former immigration judge.

“Court funds should be used to ensure the court operates efficiently and fairly,” Slavin said, according to Business Insider.

The groups emphasized that independent control would make the system more efficient while providing better access to justice.

“In its current state, the immigration court system requires a structural overhaul to solve its foundational problems,” the groups stated in their letter.

By: Ernie Smith

 



Allen Lund Transportation Association Program (TAP)

Since 1976, the Allen Lund Company a third-party transportation broker, has worked with
shippers, growers and carriers across the nation to arrange the transport of dry, refrigerated
and flatbed freight. Specializing in perishable logistics, ALC moved over 400,000 loads in 2018
and continues to expand their footprint, opening new offices strategically located.

The newest service ALC has developed is a software solution, ALC TMS. "ALC TMS
was built from the ground up to manage the complexities of produce transportation, and we
welcome the opportunity to discuss all the features with our NWA partners...". Features
available to assist NWA members include spot bid, dock scheduling, load tracking and
numerous other options to make transportation a less stressful endeavor.

Additionally ALC provides to NWA members TAP (Transportation Association Program), which
includes:
Priority on providing capacity in tight markets
Lane analysis and reporting
Discount on live load tracking
Discount on ALC TMS
EDI 214 integration

Allen Lund Company (800) 404-5863 ALC TMS (800) 282-3246


CHEP & NWA Pallet Program

CHEP helps move more goods to more people, in more places than any other
organization on earth. Its pallets, crates and containers form the invisible backbone of
the global supply chain and the world’s biggest brands trust us to help them transport
their goods more efficiently, sustainably and safely. We have approximately 300 million
pallets, crates and containers, and a global network of 750 service centers. About 100
million of those pallets are in the U.S. alone.

Seeing CHEP’s commitment to the watermelon industry, the NWA and CHEP entered
into an official partnership more than a decade ago to benefit its members. Since the
partnership began, CHEP has donated over $150,000 to fund food safety and
traceability initiatives, research solutions to pest and disease pressures, promotions
(National Watermelon Queen Program) and overall member services operations.

In addition to giving back to the NWA, CHEP has also added tremendous value to
customers through collaborative initiatives, such as the CHEP customer storage
program. Members who are CHEP customers receive compensation for storing CHEP
pallets during the off season, making them readily available for use when harvest
comes.

I’m happy to chat on how CHEP can meet your transportation needs, or if the customer
storage program is a fit for your operations (click here to access a case study in
watermelons)—I look forward to hearing from you.

Rick Overholt
Director of Sales, Produce, CHEP North America
[email protected]
Cell: 661-204-9826

Testimonials

Click below to see how CHEP has created success for some of our members.

Frey Farms
Melon 1
Sweet Mama Produce

 


Blue Book

Blue Book Services began in 1901 when former potato-shipper A.L. Baker decided to address a real need he saw in the fresh produce industry. Since the livelihoods of fruit and vegetable traders relied on highly perishable commodities, there needed to be a sound way for these traders to choose reliable trading partners and protect their credit extensions.

To address this, Baker and other founders created “Baker’s Potato Code,” based on the simple principles of honor, integrity and service. This later came to be known simply as “Blue Book.” Throughout Blue Book Services’ history, our associates have been committed to staying on top of the needs of the marketplace, as well as providing best-in-class credit rating and marketing tools.
Over a century later, the lumber and building material industry reached out to us with their need for a reliable way to protect their credit extensions. In 2009, we expanded and adapted our services to include these providers, committing to the same level of advantage and innovation.
As our mission statement communicates, we are committed to providing our customers with the best resources for their success. And for over 115 years, we have done just that.

Jeff Lair
Marketing Director
Phone: 630 668-3500, x. 726
Email: [email protected]
Website: www.ProduceBlueBook.com


Highland AG

Highland Ag Solutions (HAS) is proud of our long-standing relationship with the NWA and state chapters. The HAS family, which consists of Highland Precision Ag, Highland Fresh Technologies and Coastal Ag Supply, is dedicated to providing growers with the tools and products needed to navigate through this new world of agriculture. The Highland Hub empowers growers to manage their food safety programs, review soil and water samples, follow recommendations, monitor weather stations and soil sensors, purchase crop protection products, nutritionals, shelf life extension products, equipment cleaning and sanitation solutions, and other supplies - all from their device. As the needs of our industry grow and change, HAS will be there every step of the way to keep growers connected, efficiently and securely.

Walt Shappley
Vice President

Email: [email protected]
Cell: 863.860.0431
Office: 863.844.4263 

 

Secretary Perdue issues a statement on the Department of Labor’s Proposed H2A Modernized Rule

USDA Secretary Sonny Perdue issued a statement soon after the release of the Department of Labor’s proposed rule to modernize the H-2A program to reflect stakeholder concerns and improve access to a legal source of agricultural labor.  “The proposed rule will increase access to a reliable legal agricultural workforce, easing unnecessary burdens on farmers, increase enforcement against fraud and abuse, all while maintaining protections for America’s workers. When this rule goes into effect, our farmers will be released from unnecessary and burdensome regulations allowing them to do what they do best.”

The Department of Labor (the Department), Employment and Training Administration and Wage and Hour Division today posted online a Notice of Proposed Rulemaking (NPRM) to solicit public comments on proposed changes to improve the H-2A temporary agricultural labor certification program. These proposed changes would modernize the Department's H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program's protections for the U.S. workforce and enhancing enforcement against fraud and abuse.

The NPRM includes several major proposals that would streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers. For example, the NPRM would streamline the H-2A application process by mandating electronic filing of job orders and applications, promoting the use of digital signatures, and providing employers with the option of staggering the entry of H-2A workers on a single application.
The NPRM also proposes to strengthen protections for U.S. and foreign workers by enhancing standards applicable to rental housing and public accommodations, strengthening surety bond requirements, expanding the Department's authority to use enforcement tools like program debarment for substantial violations of program rules, and updating the methodologies used to determine the Adverse Effect Wage Rates and prevailing wages to ensure U.S. workers similarly employed are not adversely impacted.

Finally, the NPRM would expand access to the H-2A program by revising the definition of agricultural labor or services to include employers engaged in reforestation and pine straw activities, as workers performing these services share many of the same characteristics as traditional agricultural crews. The proposal would also codify and update procedures governing the certification for job opportunities in animal shearing, custom combining, beekeeping, and reforestation.
The Department is posting a copy of the NPRM in advance of its publication in the Federal Register. A copy of the NPRM can be found by clicking here.

 
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