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A New and Improved I-9 IMAGE

Editor’s note: the Associated Press recently reported that the number of companies participating in ICE’s “IMAGE” program has been gradually expanding in the wake of increasing I-9 and worksite enforcement. Just today, ICE announced that nearly 400 businesses in the Boston-area are now members of the voluntary compliance program. Is the IMAGE program right for your business?  How has the program improved over the years? Today, we begin a 2-part series (in the theme of point/counterpoint) on IMAGE with the assistance of guest bloggers Jared Leung andNancy Jo-Merritt from Fennemore Craig, P.C.

A few weeks ago, I attended an IMAGE training session provide by the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (‘ICE’) in Scottsdale, Arizona.

I was kind of skeptical of any training provided by ICE, which was the enforcement arm of immigration law – the same people who carry guns and haul undocumented workers away from restaurants and other businesses.  However, at the end of the day, I was very pleased that I went.  The training was hosted in a conference room in an upscale hotel.  Refreshment was provided.  Speakers were all great.  As expected, representatives of DHS and ICE were presenting the E-Verify and IMAGE programs in the most favorable light possible.  They had good arguments, were clear, and very convincing.  ICE did a very smart thing as well.  They invited employers who had signed up for IMAGE to share their experiences with the audience.  Some people from the audience would also make remarks occasionally to support the program.  Unlike some “government training” that I had attended in the past, where speakers were ill-prepared, not that excited, and were only going through the motions, I felt that the speakers were extremely professional and courteous.  Overall, my sincere compliments to DHS and ICE for a job well done.

But at the end of the day, was I sold on IMAGE?

Let’s take a quick step back.  What is IMAGE?  IMAGE stands for “ICE Mutual Agreement between Government and Employer”.  The ICE flier on IMAGE states that IMAGE was “created in 2006 as a joint government and private sector initiative designed to build cooperative relationship that strengthen hiring practices and encourage employer compliance.  The goal of the IMAGE program is to curtail the employment of unauthorized workers through outreach, education and partnership.”

Unfortunately, the initial design of the program was a bit one-sided in favor of the Government.  There was nearly no incentive to sign up for IMAGE. Employers would have to submit to an ICE audit. Fines would be levied in the usual way, although I imagined that ICE would have taken into account of the good faith effort by the employer.  Unfortunately, most employers simply did not feel that they were getting enough in return to justify getting too close with ICE.  After all, these people have guns.

The result of the initial IMAGE program was dismissal.  Since its introduction in 2006, only 115 companies nationwide had signed on as of Jan 2011 based the report in the Wall Street Journal.  The U.S. has about 10 million employers.  This mean only one thousandth of one percent of employers used IMAGE – a resounding failure of the program. The low sign up rate finally made ICE realize that there were issues with the “old” IMAGE program.  So, they have introduced the streamlined IMAGE certification process, which requires an employer to complete three tasks:

  1. Enroll in the E-Verify program within 60 days;
  2. Establish a written hiring and employment eligibility verification policy that includes internal Form I-9 audits at least once per year; and
  3. Submit to a Form I-9 inspection.

In return, ICE agrees to:

  1. Waive potential fines if substantive violations are discovered on fewer than 50% of the required Forms I-9;
  2. In instances where more than 50% of the Forms I-9 contain substantive violations, mitigate fines or issue at the statutory minimum of $110 per violation;
  3. Not conduct another Form I-9 inspection of the company for a two-year period; and
  4. Provide information and training before, during and after inspection.

ICE touted the benefits of becoming IMAGE certified, including:

  • Public recognition of the employer’s IMAGE certification;
  • Avoidance of lawsuits and other legal actions resulting from unauthorized employment;
  • Brand name protection;
  • Fine mitigation;
  • A stable workforce;
  • No Form I-9 inspection for a minimum of two years; and
  • ICE provided training and guidance on proper hiring procedures and fraudulent document awareness

What do you think?  Sold or not sold?

Before you decide, let’s think through this carefully.

First, the three tasks that ICE requires an employer to complete seem reasonable.  If an employer is located in a State that has mandatory E-Verify, task number 1 has been completed.  As to task number 2, which is to have a written policy and internal audit at least once a year, I would submit that all employers should be doing that anyway.  A written policy, if properly prepared, can really help an employer handle difficult situations where undocumented workers are discovered in the work place.  If the policy is transparent and accessible to all employees, as well as faithfully followed by management, the policy could help mitigate issues arising from completion of I-9 and discrimination.  What to put in a policy is beyond the scope of this discussion, but few would argue against the need of having a good I-9 policy.  As to the annual internal I-9 audit, it is simply good practice to do that anyway.

Task number 3 causes the most knee jerking reaction from employers.  Understandably, employers are nervous to submit to an ICE I-9 audit.  No matter how much an employer has tried, it is nearly inevitable that there could be mistakes on their I-9s.  Fines can be levied and in this economy, every dollar counts and most employers do not want to take any chance to be fined by ICE.  This is where I believe the new IMAGE initiatives have made a huge difference.  ICE promises that an employer will not be fined if fewer than 50% of its I-9s contain substantive violation.  I made a point to ask the presenter whether I-9s that have been self-audited and corrected by the employer would be counted towards the 50%.  The response was “no”.  In other words, an I-9 that has been corrected by the employer will not go to the “error” pile.  I have found this to be very enticing, because if an employer has conducted an effective and thorough internal audit prior to enrolling in IMAGE, it should not have any “substantial” errors.  And even if it missed a few, it would not amount to 50% of its I-9.  Therefore, an employer can take affirmative steps to ensure that submitting to an I-9 audit will not result in any fines.  Further, the ICE officer explained that ICE would only audit an employer’s I-9s for its current employees, not past employees whose I-9s are still subject to the retention requirement, because ICE wants to focus on current compliance.  This, again, is significant to employers who may have a high turnover, such as fast food restaurants, who are subject of so many ICE raids and audits.

Another benefit of enrolling in IMAGE for the employer is the control of the timing of the ICE audit.  Employers who have gone through an ICE audit would recall that they only had three days to prepare the response, resulting very often in three days of scrambling.  However, employers who enroll in IMAGE can work closely with ICE on the timing of the ICE audit.  Also, employers can be prepared in advanced and only contact ICE when it is ready.  This would alleviate a lot of the stress in connection with an ICE I-9 audit.

After the initial internal audit and enrollment, an employer will not have an ICE audit for at least two years, although it has to still conduct internal audit on an annual basis.  Hopefully, by the time an employer has gone through the IMAGE enrollment process, it would have a process in place which allows it to conduct annual I-9 audit in an effective and less painful manner.

Other less tangible but still significant benefits include being a “good” employer in the eyes of ICE.  After all, the employer has chosen to work with ICE and enrolled in IMAGE.  Employers would have someone to call in ICE if it has any I-9 or related questions.

Are there any downsides?

Not sure if these are downsides, but there are some concerns.  ICE explained that employers should not consider enrolling in IMAGE to be a “free pass” for those who have been in gross violation of the law.  I am not sure what that means.  Does it mean that ICE reserves the right to fine an employer on subjective criteria?  I hope it does not because doing so would defeat the purposes of enrolling in IMAGE.  However, I did not get a clear answer from ICE.  Also, IMAGE certification seems to last only for two years for the employer.  Does it mean that the employer should be prepared for an ICE audit every time it renews its certification?  I think employers would be less enthusiastic about signing up for IMAGE if it means an ICE audit every two years.  I don’t think that’s ICE intention, but I believe that some clarity from ICE is needed.  Lastly, is IMAGE a club that is easy to join but difficult to leave?  What if an employer, for any reasons, decides not to participate in IMAGE anymore?  Is leaving IMAGE going to trigger an ICE audit or blacklisting the company?  We do not know.

ICE also explained that it also wants IMAGE to get more employers to use E-Verify.  While using E-Verify is mandatory in a State like Arizona that has mandated it, many states still have left it to the employer.  Whether participating in E-Verify is a good idea or not is also beyond the scope of our discussion, but all can agree that it is a huge commitment for an employer.   However, it is generally believe that mandatory E-verify across the U.S. is just a matter of time, especially with the introduction of the Legal Workforce Act in the House by Representative Lamar Smith.  Still, asking employers to use E-Verify when it is still optional is a lot to ask of an employer.

I believe that the streamlined IMAGE process represents a signature improvement, and DHS and ICE are genuinely trying to entice employers to use it through the “carrots and sticks” approach.  I do not object to it and believe that many employers can really benefit from it.  Also, the window of getting the benefits from the streamlined process may not last very long. When E-Verify becomes mandatory nationwide, there will be fewer incentives for ICE to waive any fines or provide incentives for employers to participate in IMAGE.

IMAGE may not be for everyone, but if I had a company and if I felt pretty good about the conditions of my I-9, I would do it, but that’s just me.

Human Resources Today