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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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