Construction Law: I-9
Are You Ready for an Audit?
by Trent Cotney, partner, Adams & Reese, LLP
(Editor’s Note: Trent Cotney, partner at Adams & Reese, LLP, is dedicated to representing the roofing and construction industries. Cotney is General Counsel for the Western States Roofing Contractors Association and several other industry associations. For more information, contact the author at (866) 303-5868 or go to www.adamsandreese.com.)
As an employer, you likely know that whenever you hire a new employee, you must complete an I-9 form. This requirement dates back to 1986 with the passing of the Immigration Reform and Control Act, which required United States employers to utilize the I-9 to verify the employment authorization and identity of all new workers.
There may be times when you must undergo an I-9 audit. This process is meant to ensure that your workers are allowed to work in this country and that you are following best employment practices. Such an audit is administered by Immigration and Customs Enforcement (ICE), part of the United States Department of Homeland Security. That may sound daunting, but there are ways for you to proactively prepare and ensure that you stay in compliance.
When you hire new employees, take the time to carefully review their identification and documents. Be sure to receive only original documents rather than copies. Also, check the expiration dates, and never accept any documents that have expired. However, use caution in questioning a new hire’s citizenship. Ask only for the documents required by the I-9 and nothing more. If you cross the line, you could be accused of discrimination.
Ensure Form Completion
With every new hire, make sure you are using the most up-to-date I-9 form. Check that all sections have been completed and signed.
Keeping accurate and complete records is a critical step in being prepared for an audit. Be sure to retain all 1-9 forms, storing them in a place where you can easily access them. One strategy is to safeguard the I-9 files in secure folders, with one for current employees and one for past employees. Remember, you must retain the I-9s for three years after an employee’s hire or one year after termination, whichever is later.
Be sure that you continuously update your roster of current and former employees. In the event of an audit, the ICE officials will compare all I-9 forms to your employee list. If a form is missing, you will need to obtain one right away.
Completing and maintaining I-9 forms can be nerve-wracking. Even simple omissions or mistakes can lead to legal questions and fines. To ensure that you are prepared for an ICE audit, running your own practice audit or undergoing a compliance audit with a legal professional is a good idea.
With your own practice run, compare your employee roster to your I-9 forms. Is anyone missing? Have you retained the forms for the correct number of years? Are all sections of the forms complete? If you discover any mistakes or omissions, correct those as soon as possible.
For a compliance audit, seek out the assistance of a legal team. An experienced attorney can review your records, discover any potential issues, and advise you of ways to make corrections. This process will give you peace of mind if ICE sees the need to schedule an I-9 audit for your business.