In a press release issued this week, Immigration and Customs Enforcement (ICE) announced it reached a $1,047,110 fine settlement agreement with Abercrombie & Fitch for numerous deficiencies in the company’s electronic Form I-9 system. The settlement was reached as a result of an ICE audit in November 2008 of Abercrombie & Fitch’s retail stores in Michigan.
The Form I-9 audit found problems with the company’s electronic I-9 system, causing ICE to question the integrity and validity of the company’s I-9 forms. ICE reported that the investigation found no evidence the company knowingly hired any undocumented workers yet the negotiated fine settlement totaled over $1,000,000!
Form I-9 Compliance – Know Your Responsibility
Every employer should take note that an ICE investigation is not necessarily about finding undocumented workers…it is about checking the employer’s compliance with the law. Failure to follow the proper I-9 process will result in large fines – just ask Abercrombie & Fitch.
As in the case of Abercrombie & Fitch, many employers are choosing to use an “in-house” solution or some I-9 application that comes in a “bundle” with various HR on-boarding software systems. Many of these systems lack important security and audit functionality. It is important to realize ICE will hold employers accountable for the requirements for record keeping and technical safeguards as laid out in the 2006 interim final regulations, so choosing the right electronic solution can mean the difference between compliance and large penalties.
Although an employer’s intent may be to comply with Form I-9 requirements, the burden is clearly on the employer to insure whatever system is used produces I-9s that are secure, accurate, complete, and accessible in the event of an ICE inspection. If the electronic completion product does not meet the standard as set forth in the Interim Rule, ICE can invalidate the Form I-9’s and fine the employer as though the forms were never completed.
What to look for when shopping for an electronic Form I-9 solution
1. A system that completes all field as though it were a paper form
- All Section 1 fields
- Employee Attestation
- Employee Electronic Signature
- All Section 2 fields
- All document information including Title, Issuing Auth, Doc #, and Expiration Date
- Employer Attestation including hire date
- Employer Electronic Signature
2. Choose the right vendor – ask the right questions
- Does the vendor have experienced immigration attorneys on staff to assist in design and updates to the system?
- What guarantee does the vendor contract provide?
- Can the vendor provide client references that will attest to the vendor’s ability to support the product, release accurate timely updates, and keep data secure?
While electronic I-9 systems have many features and options, selecting the right solution demands careful planning and appropriate due diligence. And as always, Buyer Beware! – price should not be the only consideration when selecting the appropriate vendor for your electronic Form I-9 completion and storage.