U.S. Immigration and Customs Enforcement’s (ICE) Office of Homeland Security Investigations (HSI) recently announced it had reached a $1,047,110 settlement with the clothing retailer Abercrombie & Fitch following discovery of violations of the Immigration and Nationality Act (INA). HSI concluded that Abercrombie & Fitch violated INA provisions requiring an employer to verify the employment eligibility of its workers through the Form I-9 process. The announcement is noteworthy because HSI’s I-9 audit uncovered no instances of the knowing hire of unauthorized workers by Abercrombie & Fitch, but rather the fine resulted solely from numerous technology-related deficiencies in the company’s electronic I-9 verification system.

Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan, noted that “[e]mployers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance.” Mr. Moskowitz went on to state that “the settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.”

These latest I-9 sanctions highlight the ongoing efforts of ICE to audit the employment verification practices of employers and hold them accountable for deficiencies, even if those deficiencies do not lead to the employment of unauthorized workers. Given the continued focus of enforcement efforts on employers, company management must take proactive steps to confirm that it has appropriate procedures and technology in place to correctly navigate the I-9 process and related record retention requirements. Enforcement activity in the worksite—both by federal and state agencies—has grown significantly, and the tactics deployed are increasingly aggressive.

Where to find help

For tips on how to prepare for a potential ICE audit, see our July 10, 2009 Management Alert. In addition, the Seyfarth Workforce Authorization Team (SWATeam) has considerable experience reviewing electronic I-9 verification systems and counseling clients on the best available systems to meet their compliance needs.