E-Verify and Indiana Employers

In Indiana, employers must ensure that their employees are authorized to legally work in the United States. Employers may use an I-9 form as required by federal and state law, but companies conducting business with federal, state, or local public entities are required to utilize E-Verify.

E-Verify is an online system available through the United States Citizenship and Immigration Services (USCIS) website which assists employers in confirming the legal work status of their employees or workers. In 2011, Indiana enacted S.B. 590 which requires state agencies and employers who contract with state or federal agencies to utilize the E-Verify service when hiring new employees.

Employers are always required to utilize an I-9 form, available on the USCIS website, when hiring a new worker or employee. An I-9 form requires basic documentation in order to verify the identity and legal status of a worker. Employers must complete and retain this form for all workers. Failure to comply with the I-9 process can result in a minimum $110 fine per worker to a $1,100 maximum fine per worker for a first offense alone. Civil fines and criminal penalties increase greatly for businesses who knowingly hire or continue to employ persons who are not authorized to work in the US – particularly if there is an ongoing pattern of hiring or recruiting unauthorized workers.

Under the E-Verify process, once an employer has completed an I-9 form for a worker, the employer needs to open a case in the E-Verify system which is then processed through Department of Homeland Security (DHS) and Social Security Administration (SSA) records. A case must be initiated in E-Verify no more than three business days after the employee’s date of hire.

For any businesses who accept government contracts or are awarded contracts via local or state agencies, E-Verify is required. Contractors are also required to sign an affidavit acknowledging that the employer does not knowingly hire undocumented workers. A further complicating factor for companies who are awarded government or agency contracts involves those contractors who utilize subcontractors – as the contractor is also liable for the workers of any subcontractor. This means that if a contractor becomes aware that a subcontractor knowingly employs unauthorized workers, the contractor must terminate the business relationship. The contractor and/or subcontractor must also show proof of enrollment and participation in E-Verify.

In the event a violation arises, the state agency must notify the contractor and the contractor has thirty days to remedy the situation. There is a rebuttable presumption that the contractor or subcontractor did not know of the violation if they are enrolled in E-Verify and received confirmation from E-Verify regarding validity the worker’s eligibility. If the contractor or subcontractor does not remedy the violation within thirty days, the contract with the public agency is terminated.

Subcontractors working with contractors who are awarded projects for or with public agencies must also certify their employees’ authorization to work and be enrolled in E-Verify. In the event the subcontractor cannot, the contractor may terminate the contract with the subcontractor. However, the contractor must continue to certify to the government agency, that their subcontractors’ employment authorization practices are as outlined above.

If you have questions about this article, I-9 compliance, the E-Verify process, or have been contacted by a state or federal agency regarding your employment verification practices, we will be happy to discuss them with you if you contact us, which you may do at 317-773-3030 or admin@nickloyhigdon.com.