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I-9 audits present legal concerns for businesses

New law may cause more employers to seek counsel.

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Indiana’s chapter of the National Federation of Independent Business issued a press release June 23, urging Indiana businesses to prepare for I-9 audits. U.S. Immigration and Customs Enforcement has stepped up its audits of businesses nationwide in an effort to crack down on the employment of unauthorized immigrant workers.

Employers are required to have employees complete I-9 forms, providing documentation that proves the worker’s identity and authorization to work in the United States.

Michael Palmer, a partner in Barnes & Thornburg’s South Bend and Grand Rapids, Mich., offices, said that the I-9 audits – which have become more common during the Obama administration – are a softer approach than previous methods of immigration compliance enforcement.
 

palmer-michael-mug.jpg Palmer

“What employers need to understand is that this process has really taken the place of raids in terms of how ICE is gathering evidence to target employers – not only for I-9 allegations, but also for allegations for knowingly employing unauthorized workers,” Palmer said.

Once ICE notifies a business about a pending audit, Palmer said, “Employers should – and usually do – ask for three days to respond, and usually we hear from them at that time.”

Among the items ICE will ask to review are I-9 forms for current employees and any employee who has been terminated in the past three years, wage reports, and any temporary staffing agreements.

Palmer said that companies that hire through temporary agencies are not required to provide the I-9; that may come from the agency. But because some companies have in the past tried to subvert employment laws by hiring unauthorized immigrant temp workers, Palmer said, businesses must be able to show on paper that they’ve done what they can to verify employment eligibility.

Palmer said he has not received any recent requests from Indiana businesses seeking help with an I-9 audit. But Christl Glier, of-counsel for Ice Miller in Indianapolis, has.

“We’ve been involved in a handful of audits for some Indiana companies – the one most recently of ours is a small startup company,” Glier said. “The things that you see on ICE’s website and in the news and in the media, oftentimes, there are very large companies with a national presence, but smaller companies, that’s a little bit new, for sure,” Glier said.


glier-christl-mug Glier

Both Palmer and Glier said they aren’t certain how ICE chooses businesses for I-9 audits.

“It’s a bit of a mystery,” Palmer said. “They represent that they only target companies that they suspect are violating the law. Now we know from experience that’s not always the case.”

“Some of the things we’ve seen recently make us think that there is some degree of randomness to it all,” Glier said. “It doesn’t seem to be industry-specific. It just makes you wonder if there’s more going on than some of the specific, very blatant things that are triggering these I-9 audits.”

ICE may be more likely to audit businesses that have been subject to immigration raids in the past, Palmer said. And employers who have received “no-match” letters from the Social Security Administration may also be targeted for audit. The no-match letter – or employer correction request form – indicates that a Social Security number provided for an employee does not match the SSA’s records.

On July 1, Indiana businesses that are contractors or subcontractors for government agencies will be required to use the Internet-based E-Verify system to confirm employees’ eligibility to work.

“We do hear from quite a few employers about this,” Glier said. “Even ones that are not required to use it just yet, but definitely anticipate that that’s the direction we’re heading. The other issue is just the administrative burden that this places on some companies – it takes training, manpower.”

Palmer said he thinks immigration compliance is a growing concern for employers, especially for large companies with offices in multiple states that may be struggling to understand the laws from state to state.

“We have represented clients who we believe have made a good-faith effort to comply with the I-9 process, but yet they’re subject to I-9 audit,” Palmer said. “The I-9 process – it can be confusing, and employers who do make an effort to comply in good faith are still getting caught in the crosshairs.”

Glier and Palmer recommend that employers conduct their own internal audits to ensure they are in compliance with employment law.

“I think the huge problem for employers is trying to balance everything that’s out there – complying with I-9 requirements, worrying about discrimination issues, and what that balance should look like,” Glier said.

Fines for I-9 violations range from $110 to $1,100 for one single, minor, or technical violation. Incorrect I-9 forms can be used as evidence of knowingly hiring an unauthorized immigrant worker and can result in a fine of up to $3,200 per violation.•

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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