1. Defending an ICE Notice of Intent to Fine
Negotiating on behalf of the employer
December 5, 2019
David W. Leopold

2. The Notice of Intent to Fine (NIF)
ICE Form I-763
Allegations
Legal basis, e.g. INA 274A(a)(1)(B)(hiring without complying with I-9 requirements)
Attachments
Factual allegations underlying the allegations, e.g. lists of ees hired without proper verification (substantive violations)
Wherefore...it is the intent of ICE to order you to pay $200,000

3. The Notice of Intent to Fine (NIF) cont.
Right to contest
Written request for hearing
Within 30 days of service of the NIF
By personal delivery or certified mail to designated address
May submit a written answer to ICE
If written request not timely received ICE will issue final order in 45 days

4. Prepare comprehensive settlement/mitigation plan for client
Preparing the Client
Prepare comprehensive settlement/mitigation plan for client
Background, e.g. how did we get to this point
Proposed mitigation plan
Preserve right to context hearing
Review NIF for errors in ICE fine calculations
Negotiate with ICE to reduce fine amounts
Contest the NIF in hearing before ALJ in the event settlement cannot be reached

5. Contesting the NIF
File written request for a hearing before an ALJ pursuant to 8 CFR 1274a.9(e)
ICE Chief Counsel’s Office will respond with letter advising that it’s prepared to file a formal complaint but inviting settlement negotiations
Respond to ICE with a timely acceptance of invitation to negotiate

6. Negotiating with ICE; Prepare a Comprehensive Settlement Proposal
Company background
Procedural history – what led to the NIF
ICE served Notice of Inspection (NOI)
Company (hopefully) cooperated with NOI
ICE service of NIF
Substantive paperwork violations
Failure to prepare and/or present form I-9
Summary of ICE fine calculation
Emphasize the positive equities, if any

7. Comprehensive Settlement Proposal
Law and analysis
Recent OCAHO decisions favor reducing fines assessed by ICE
How proposed fines harm the company
Object/outline improper fines/calculations
Settlement offer
Make a reasonable offer, allowing yourself room to negotiate

8. ICE’s Counter Offer
A written response outlining the reasons for the fine and counter offer

9. Don’t Stop There
Pick up the phone, call the ICE Assistant Chief Counsel and continue to negotiate

10. Additional Questions? Please contact
Thank you.
Additional Questions? Please contact
David W. Leopold
Chair, Immigration Law
Ulmer & Berne LLP
@DavidLeopold