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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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