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Legal - Getting your I-9 house in order

image J. Shannon Gatlin, Senior Counsel, Cokinos | Young, P.C., Houston, TX

HOUSTON - From the 2016 Presidential campaign up through the furor over separation and detention of immigrant families this summer, immigration has been a top priority of President Donald Trump and his administration. Regardless of your personal politics, if you are an employer in construction or any related industry, you are in the crosshairs of Immigration and Customs Enforcement (“ICE”) now more than ever before.



    In today’s climate, Texas construction companies and others in related fields must take all reasonable steps to ensure compliance with the Immigration Reform and Control Act (“IRCA”), the federal law requiring the use of I-9s.
    IRCA has three major requirements for employers: (1) complete I-9s for all employees within three days of the start of employment; (2) retain I-9s and any related documentation for government inspection; and (3) do not discriminate against employees or applicants based on their immigration status.  ICE’s primary enforcement responsibilities concern the first two of these requirements.  To that end, in the first seven months of fiscal year 2018, ICE had already conducted approximately double the number of worksite investigations and I-9 audits compared to all of fiscal year 2017.  The Trump Administration has promised to quadruple the number of ICE enforcement actions from the Obama years, and has instructed ICE to develop a process that would allow it to conduct over ten times the number of I-9 audits conducted in fiscal year 2017, when employers paid more than $105 million in penalties for I-9 violations.

    IRCA’s requirements for completing I-9s are not difficult but they are strict, and any failure to complete a necessary step or to complete the form within the required timeframes can subject an employer to monetary penalties.  Establishing certain best practices and bearing in mind a few key points can help your company stay on the right side of the law if ICE pays a visit.

    When it comes to filling out I-9s, the employee must complete Section I of the form by the end of the first day of work, while the employer must complete and sign Section II by the end of the third day after the employee has begun working.  An employer must review original documents evidencing a worker’s identity and employment authorization when completing Section II.  Employers cannot require workers to provide a specific type of documentation, but instead must accept any of the approved documents listed in the instruction sheet that accompanies Form I-9; requiring particular documents is a form of discrimination known as “document abuse.”  If an employee has employment authorization documents that expire, then Section III of the I-9 must be completed to reflect any renewed employment authorization.

    For ease of compliance with any ICE actions, retain I-9 forms and photocopies of presented documents for each employee in a file separate from employee personnel files.  These records must be retained for at least three years after hire or one year after termination, whichever is longer.  Because an employer has only 72 hours to submit documents to ICE after receiving a records request, I-9s and related photocopies should be organized to allow for easy sorting and access.  Employers should use outside counsel to conduct self-audits of their I-9 records and procedures every two or three years so that the self-audit and any related communications are protected by attorney-client privilege.

    By following the above steps, your company can rest assured that it is well-prepared for an audit or investigation if ICE comes calling, and the odds of that happening grow with each passing day.

J. Shannon Gatlin is Senior Counsel in the Houston office of Cokinos | Young, P.C.  Mr. Gatlin has been Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization since 2014, and has practiced labor and employment law on behalf of companies nationwide since 2009. Mr. Gatlin can be reached at (713) 535-5504 or sgatlin@cokinoslaw.com.

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