Shannon Gatlin and Kristen Maloney wrote the following article for the May edition of Construction News magazine. Shannon and Kristen break down how proactive I-9 compliance is critical for construction employers, especially in Texas, where ICE audits and site visits are a real threat. They emphasize that conducting internal audits and engaging legal counsel in advance can shield companies from costly penalties and help maintain control when federal agents come knocking.
Picture a typical morning on a Texas construction site: crews are setting rebar, schedules are tight, and every hour counts. Then, an Immigration and Customs Enforcement (ICE) officer arrives, presenting a Notice of Inspection (NOI) that demands all Form I-9 records within three business days. For construction firms, with their expansive workforces and high visibility, such scrutiny is not hypothetical, it's reality, and the consequences of unpreparedness in such a situation can be severe, from substantial fines to operational disruptions. Yet, through proactive compliance measures, construction employers can mitigate these risks and protect their business.
With federal scrutiny intensifying and penalties for noncompliance reaching six figures, construction employers can't afford to leave I-9 compliance to chance. Conducting a thorough internal audit before an inspection is not just wise, it's essential. A well-executed self-review allows you to catch and correct errors and demonstrate good-faith efforts if ever called upon to respond. Waiting until the government is reviewing your files is simply too late. The best time to address potential issues is before your records are under federal review.
Understanding What's at Stake
Every U.S. employer is required to complete and retain Form I-9 for each employee hired after November 6, 1986, to verify identity and authorization to work in the United States. Employers must ensure the form is completed on time, that the documentation presented by the employee appears genuine, and that the form is properly stored and maintained.
If ICE initiates an audit, typically by issuing an NOI, you'll be given just three business days to produce your I-9 forms and related documentation. Employers with incomplete, inaccurate, or missing forms can face steep fines. In some cases, repeat violations or knowingly hiring unauthorized workers can result in criminal liability. Moreover, if your company doesn't have a plan in place when ICE agents show up unannounced, confusion and fear may lead to disorganized responses from your workforce.
Conducting a Voluntary Internal Audit
One of the most effective ways to reduce risk is to regularly conduct a voluntary internal I-9 audit. It demonstrates good faith to regulators and can help reduce penalties. When done correctly, it can also help employers identify systemic issues before they become legal problems.
A complete audit should include all current employees and any former employees whose I-9s fall within the retention period (three years from hire or one year after termination, whichever is later). Each form should be reviewed for completeness, valid documentation, and timely execution of both employee and employer sections.
Common mistakes include missing signatures, late completion dates, or incorrect document types. Errors must be corrected carefully: original forms should never be replaced or backdated. Corrections should be clearly marked, initialed, and dated. If a form was never completed, a new one should be filled out immediately, dated accurately, and accompanied by a written explanation.
Employers should also track expiration dates for temporary work authorizations and ensure that work eligibility is reverified before an employee's authorization expires. Overlooking these requirements can lead to significant penalties.
Just as critical is proper storage. It is best practice to store I-9s in a secure, centralized location, separate from personnel files. Remember, employers have just three business days to produce them during an audit.
The Value of Legal Oversight
Employers often assume that a self-audit is solely an HR task. But involving legal counsel adds two major advantages. First, counsel can help ensure the audit is conducted properly, spotting both technical and substantive issues that may otherwise go unnoticed. Second, when an audit is carried out at the direction of an attorney, the findings may be protected under attorney-client privilege. That layer of confidentiality can be critical if the audit uncovers potential compliance concerns.
Legal counsel can also guide you on how to handle corrections, what to do if you discover unauthorized workers, and how to implement or revise company policies to avoid future issues.
If the Government Comes Calling
The reality is that even companies with the best of intentions may one day face an audit or enforcement visit. That's why it's far better to conduct your own internal audit before the government comes knocking. A well-planned audit takes time and attention to detail. It's not a task that can be rushed under the pressure of a looming deadline. Employers who wait until they receive an NOI to get their records in order often find themselves playing catch-up with limited options.
If your company does receive an NOI, contact your legal counsel immediately. The three-day window to produce records should be used strategically: reviewing your files for completeness, flagging known deficiencies, and preparing a clear and compliant response. Keep copies of everything you provide and document your steps in detail.
If ICE agents arrive at your job site unannounced, you are entitled to request a warrant before granting access to non-public areas or employment records. If a warrant is presented, review it carefully to determine precisely what it authorizes and limit access accordingly. Assign a designated company representative to interact with agents, and ensure employees are trained not to speculate, panic, or volunteer information.
Final Thoughts
I-9 compliance may not be the most exciting part of running a construction company, but it is one of the most important. In today's enforcement environment, failing to keep your records in order can be a costly mistake. The good news is that with the right internal processes and the support of knowledgeable legal counsel, employers can get ahead of potential problems and build a solid defense against enforcement actions before they arise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
