“Brave New World For All of Us”–Highlights from the IMAGE Employer Training Conference

[Editor’s Note: today’s blog is courtesy of Dawn Lurie, Kevin Lashus, and Maggie Murphy of Greenberg Traurig]

In an effort to rebrand the Immigration and Customs Enforcement ICE Mutual Agreement Between Government and Employers (IMAGE), ICE presented a two day training in Washington DC. The tone and structure of the conference truly emphasized ICE’s commitment to educating employers and providing the tools for those companies that want to “do the right thing.” This event marked the public transition of IMAGE as a membership only program to a program focused not on increasing membership but on providing outreach and education. ICE leadership has seemingly started to understand that compliance starts with training; that compliance outreach is not a one size fits all process; and that the government has a large responsibility with educating the public.

Creating a culture of compliance was coupled with “trust” as recurring themes throughout the conference. ICE invited the US Citizenship and Immigration Services (USCIS) Verification Division and the Social Security Administration to join their Office of Investigations (OI), and the Office of Principal Legal Advisor (OPLA). Here are some of the highlights of Day 1:

Deputy Director Alonzo Pena welcomed participants. Director Pena emphasized that ICE would welcome private assistance with addressing the unauthorized worker challenge by encouraging employers to consider IMAGE best practices. “We’re never going to arrest our way out of the immigration challenge,” Pena said. Instead, ICE needs to foster a culture of compliance. ICE is committed to increasing capacity to conduct I-9 inspections. In FY2007, 254 employers found themselves subject to ICE worksite inspections–that number jumped to over 1,600 during FY2010. 164 administrative orders have resulted in over $4M in administrative fines. 147 employers have been criminally convicted or worksite violations during the calendar year. Debarments have also increased significantly for Federal Contractors.

Brett Dreyer (Unit Chief, ICE Worksite) followed Director Pena to stress that ICE needs assistance from employers to aid enforcement. “Trust will be a recurring theme.” During the mid-1990s, upwards of 16-17,000 employers/year were served with Notices of Inspection–this is a likely target for the near future. “I-9 inspections are incredibly powerful,” Special Agent Dreyer said. Currently, there are about 100 IMAGE partners–a number ICE would like to see increase significantly in the coming months. It is too late after the service of the Notice of Inspection to attempt to remedy defective I-9s, Dreyer noted. Currently, many enforcement initiatives are being considered, including a new memorandum of understanding between ICE and the Department of Labor.

Special Agent Kurt Fitz-Randolph then presented, “The Form I-9 and proper completion, storage, and maintenance.” Generally, ICE considers the standard workday schedules of HR and support personnel when considering the 3 (Thursday Rule)-day rule: a 7-day work week may be considered a 5-day week, if HR support is only available Mondays through Fridays. Essentially, Agent Fitz-Randolph identified that ICE may consider the reasonableness of standard operating procedures (SOPs) before assessing a fine. OPLA Attorney Paul Gleason encouraged employers to create and apply such written SOPs consistently. Employers were also reminded to consider the substantive distinction between an offer and acceptance for a position and ultimate gainful employment. Finally, much to our chagrin employers were encouraged to create audit checklists tracking errors when performing an internal audit.

Special Agent Todd Johnson and USCIS Representative Francine Hill discussed electronic I-9s. ICE emphasized a “product neutral” standard when evaluating electronic Form I-9 software applications. ICE recommended that an employer strongly consider using a “true audit trail.” ICE suggested that electronic software may ease pressure related to I-9 requirements, and that employers understand that there are no additional requirements of electronic I-9s as compared to paper-based protocols. However, Agent Dreyer also pointed out the importance of auditing electronic I-9s and Mr. Gleason noted the need to have competent legal counsel assist in reviewing the particulars of the decision to “go electronic.”

Assistant U.S. Attorney Joe Koehler then discussed worksite-enforcement-related criminal prosecution–including harboring unauthorized employees and document fraud. He highlighted that–during the preceding couple of years–DOJ on behalf of ICE has entered 140 non-prosecution agreements–ensuring employers were moving toward internal employment verification compliance monitoring.

Chuck Liptz presented for the Social Security Administration and then discussed the Social Security Number Verification Services (SSNVS). SSNVS is one of the twelve IMAGE best practices.

Finally–to close out the day–Phyllis Bell presented E-Verify and FAR best practices. During FY2008, 6.6M employees were run through E-Verify–a number that has grown to 13.4M during the first part of FY2010 in over 775,000 hiring locations throughout the US. Generally, 96.9% of new hires are “work authorized” during initial screening. According to Ms. Bell, 3.1% of employees receive tentative non-confirmations, with 2.8% ultimately receiving final non-confirmations and only .3 % later being confirmed as work authorized after contesting and resolving the mismatch. These same statistics are also available on the USCIS E-Verify web site here.

The recurring themes of the day were twofold: First, ICE is hoping to build partnerships with employers through the IMAGE program and recognizes that a strong, mutual trust must be built before a successful partnership can be created –employers will not trust the agency if there is a pattern of prosecuting good-faith E-Verify and IMAGE partners. Second, employers should institute strong compliance policies now, before ICE investigates –otherwise, it may be too late to avoid extensive fines and possible prosecution. Day 2 of the Training should prove to be just as exciting and informative with Forensic Fraudulent Document Training, Anti Discrimination issues, OPLA issues and a presentation from the Honorable Judge Ellen Thomas scheduled.

ICE and USCIS will be issuing additional I-9 and E-Verify guidance to employers in the coming months. In the meantime, inquire of your immigration counsel for the most recent recommended best practices.