Earlier this year, Ohio enacted a new employment verification law that will significantly affect much of Ohio’s construction industry. Ohio House Bill 246, the E‑Verify Workforce Integrity Act (E-Verify Act) requires many construction employers to implement E‑Verify on certain projects. Additionally, the U.S. Immigration and Customs Enforcement (ICE) issued a significant update to its Form I-9 review process. Together, these developments materially increase many Ohio construction companies’ compliance obligations and risk of enforcement activity.

Ohio E-Verify Requirements

The E-Verify Act applies to contractors, subcontractors, and labor brokers performing commercial construction or renovation work in Ohio on buildings, highways, bridges, utilities, and related infrastructure, subject to certain exclusions. Notably, certain construction projects (primarily residential) are expressly exempt, including: (1) One-, two-, and three-family dwellings; and (2) Manufactured homes, mobile homes, industrialized units, and agricultural structures.

The E-Verify Act is project-based and applies prospectively to new hires only. Existing employees do not need to be run through E‑Verify unless there is a separate federal requirement (e.g., federal contractor rules) for that project.

The law expressly applies to project subcontractors, creating additional risk for general contractors. As a result, general contractors must actively ensure compliance throughout the project chain.

General contractors should:

• Ensure all subcontractors working on non-residential projects are aware of the law;
• Implement flow down contractual provisions referencing the E-Verify Act and requiring written confirmation of compliance, including by a separate affidavit of compliance; and
• Monitor subcontractor adherence to E-Verify requirements.

They should not undertake their own independent review of the subcontractor’s I-9s to avoid increased exposure in an enforcement action.

Notably, compliance with the E-Verify Act does not replace obligations to complete Form I-9s; rather, every new employee must complete a Form I-9 and the employer must create an E‑Verify case for each new hire assigned to non-residential projects.

Updated Guidance with respect to I-9 Enforcement

ICE also has significantly revised how it evaluates Form I-9 errors. Errors previously treated as technical or correctable are now increasingly classified as substantive violations.

As a result, no correction period applies, and ICE may immediately assess penalties carrying meaningful legal and financial consequences.

ICE may now classify the following errors as substantive violations:

• Missing date of birth in Section 1;
• Missing USCIS/alien number in Section 1, when applicable;
• Missing date next to employee signature in Section 1;
• Missing expiration date;
• Missing date of hire or failure to date Section 2;
• Missing employer representative title, signature, or date;
• Incomplete or incorrect preparer/translator information;
• Using the Spanish‑language Form I‑9 outside of Puerto Rico;
• Incomplete List A, B, or C data in Section 2, even when copies of the documents were attached;
• Failing to check alternative procedure box/not being enrolled in E-Verify when using remote verification;
• Missing rehire date in Supplement B; and
• Electronic I-9 audit trail, e-signature, or security documentation deficiencies.

This shift substantially raises the stakes for employers. Historically, many businesses relied on post-audit corrections to cure minor paperwork deficiencies; however, under ICE’s revised approach: (1) The margin for error is much narrower; (2) Routine mistakes may result in uncurable violations; and (3) Employers are exposed to immediate financial and legal consequences.

Recommended Action Items

Considering the impact of the E-Verify Act and ICE’s updated enforcement position, Ohio construction employers should consider taking the following steps:

• Update subcontract agreements to require E-Verify Act compliance with a separate affidavit from the subcontractor that they are, and throughout the life of the project, remain in compliance with the E-Verify Act;
• Develop and implement E-Verify procedures specific to covered projects;
• Retrain HR and onboarding personnel, emphasizing:
  • E-Verify compliance for covered projects
  • Complete Section 1 and Section 2 entries
  • Proper completion of Supplement B
• Complete a comprehensive Form I‑9 audit review with immigration legal counsel, including a reassessment of any prior audits to confirm that the company has fully corrected all previously identified substantive errors; and
• Review document retention policies and practices to ensure Forms I‑9 are properly retained and purged when no longer legally required to be maintained.

The synergistic effect of Ohio’s E-Verify Act and ICE’s stricter I-9 enforcement posture represents a meaningful shift in compliance expectations for the Ohio commercial construction industry. General contractors, in particular, cannot simply shift this exposure to subcontractors via indemnification provisions and must take certain actions to better ensure compliance.

If you have questions about how the E-Verify Act or ICE’s update on I-9 Enforcement applies to your business, please contact your legal counsel.

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