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5 Ways to Prepare for an I-9 Audit

It may sound daunting, but there are ways to proactively prepare your construction contracting company and ensure compliance with federal employment laws.

Trent Cotney

April 28, 2023

3 Min Read
Man in a blue shirt reviews a stack of paper work with a red pen
Jittawit Tachakanjanapong/Alamy Stock Photo

The requirement to complete an I-9 form for each new employee dates back to 1986, when the Immigration Reform and Control Act was passed. This act requires U.S. 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 the best employment practices. Such an audit is administered by U.S. Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security.

It may sound daunting, but there are ways for you to proactively prepare and ensure that you stay in compliance. Here are five to keep in mind.

1. Check documentation

When hiring 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 on documents, and never accept any 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.

2. 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.

3. Be organized

Keeping accurate and complete records is a critical step in being prepared for an audit. Retain all I-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, designating 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.

4. Stay updated

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.

5. Complete a test audit yourself

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.

To conduct your own practice audit, compare the company’s 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.

To complete a compliance audit, seek out the assistance of a legal team. An experienced employment 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.

The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is a partner and construction practice group leader at the law firm of Adams and Reese LLP and NRCA general counsel. For more information, please contact him at [email protected]

About the Author(s)

Trent Cotney

Partner and Construction Team Co-leader, Adams and Reese LLP

Trent Cotney serves as an advocate for the roofing industry and general counsel of the National Roofing Contractors Association and several other industry associations. For more information, contact the author at [email protected] or at 813.227.5501.

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