I. You CAN and SHOULD go to court to fight fines
To avoid a final order, you MUST request a hearing in writing 30 DAYS from the date of the NIF issuance. Add 5 days to the response time if the NIF was sent via the US Postal Service. If you don’t request a hearing within 30 DAYS, a Final Order imposing fines will be issued by ICE after 45 days
II. Fines are calculated on a Penalty Matrix
5 factors ICE uses to determine the fine amount:
1. Size of the business
2. Good faith compliance efforts
3. Seriousness of the violation
4. History of previous violations
5. Whether the violation involved unauthorized workers
III. You CAN and SHOULD Negotiate the amount of the fine
How you negotiate the amount of the fine:
1. Review the list of counts, and identify whether each count tis valid
Was a violation imposed even though the I-9 wasn’t legally required?
Was the worker a contractor, and not an employee?
Was the employee subject to the Purge Rule?
2. Does the count on the notice accurately represent the facts?
At times, ICE agents impose fines in error, or for the wrong type of violation, or a violation that was already corrected in response to a Notice of Technical Errors, or a similar notice
3. Negotiate the factors from the penalty matrix
ICE does not always provide an account of what the aggravating and mitigating factors were.
IV. You CAN Appeal
OCAHO (Office of the Chief Administrative Hearing Officer) is headed by a Chief Administrative Hearing Officer, who supervises and manages the Administrative Law Judges who preside over hearings. All final agency decisions are subject to Administrative Review by the Chief Administrative Hearing Officer and/or the Attorney General. OCAHO Judges have been
All final agency decisions are subject to review in the federal circuit courts of appeal.
Factors OCAHO will use to determine fines on appeal:
1. Whether the imposed fines are too high
2. Size of the business
3. Good faith compliance efforts
4. Seriousness of the violation
5. History of previous violations
6. Whether the violation involved unauthorized workers
7. Other considerations include, but are not limited, to the business’s ability to pay the fine and the hardship on the business, and the amount of weight given to each factor above.
Jacob M. Monty
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