Can you improve your I-9 “IMAGE”?

[Editor’s note: today’s blog is courtesy of Gary Endelman of Fong & Associates LLP]. Announced in July 2006, the ICE Mutual Agreement between Government and Employers (IMAGE) is a voluntary partnership initiative between the federal government and private sector employers designed to foster employer self-compliance with employment eligibility verification rules and reduce unlawful employment. The facts on IMAGE are yours to enjoy at ICE has only attracted 113 IMAGE partners nationwide to date, but enrollment has been steadily increasing in recent months. Should your organization consider participating in this government program? What are the pros and cons of having a good IMAGE (with ICE)? Maybe the best way to approach whether IMAGE is right for you is to ask some basic questions: Should my organization get a new “IMAGE”? Maybe.

If you do sign up, know that you are agreeing to an I-9 audit by your friendly ICE investigators.  They will scour your records to reveal if any of your workers has presented bogus documents. If you become an IMAGE “partner,” a collegial term not generally associated with ICE, this should provide a greater measure of confidence that your workforce is authorized so that you will not have to endure a loss of workers when ICE knocks at the door. Ensuring a stable workforce is one of the prime benefits of saying  “Yes” to IMAGE.[1] Know, however, that ALL members of your workforce are going to be examined; you cannot apply IMAGE selectively to cover only some workers or locations. Moreover, IMAGE will not protect you against identity theft; we already know that E-Verify itself is vulnerable to identity theft. The cooperating employer should not expect any assurances from ICE that they will not launch a covert investigation against you. It is true, however, that ICE does view IMAGE as the “gold standard” for employer compliance and one would think that this is bound to play some role when ICE decides who to investigate next. It can also serve as a mitigating factor with respect to civil fines should they be levied on an employer.[2]   What are an employer’s responsibilities upon signing up for IMAGE? When you sign up, you are also signing up for what ICE calls their list of “best hiring practices[3],” which includes participation in E-Verify, annual Form I-9 audits, and creating a policy for dealing with social security no-match letters to name a few. Some employers may be unable or unwilling to develop a formal protocol to deal with SSN no-match letters; get over it, you have to with IMAGE.  You are going to have to pay for and undergo an annual I-9 audit, probably by an external vendor. You must put in place a self-reporting mechanism to tell ICE of any violations that you uncover. This is supplemented by a “tip line” so employees can phone in what they see as the employment of undocumented workers. ICE will want to know how your organization is going to respond to such whistle blowers. Consider the impact upon employee morale and cohesion.

For those companies chary of anything that even smacks of co-employment, what about this, as reported under the IMAGE best practice home page: “Ensure that contractors’ and/or subcontractors establish procedures to comply with employment eligibility verification requirements.  Encourage contractors and/or subcontractors to incorporate IMAGE Best Practices and when practicable incorporate the use of E-Verify in subcontractor agreements.” Interestingly, it does not make clear how far such “encouragement” is expected to go; what responsibility you assume if your contractors does not share your enthusiasm for IMAGE or the extent to which IMAGE will permit you to seek indemnity from your contractors or undermine the continuing validity of indemnification agreements or covenants already in place. What are the costs involved if I sign onto IMAGE? There is the cost of building, administering, reviewing and updating an internal training program since ICE will demand a core of individuals who have been successfully trained on best practices. If you insist that your contractors develop and operate a robust system of I-9 compliance, you should expect these days to have to pay for it. Thus the cost that one will have to pay for a heightened level of I-9 observance as a precondition of signing on to IMAGE must be calculated against the anticipated benefit in terms of good will and labor stability. It is naive to think that you can expect your contractors to do something for nothing even though their I-9 adherence is mandated by law and should be already stated in your contracts with them as a condition of doing business. Beyond that, one wonders how far any employer will be willing to go in policing the I-9 practices of their contractors, knowing that they must walk a fine line between deliberate avoidance and direct involvement through IMAGE-approved training. Should I be concerned about discrimination issues if I sign onto IMAGE? Since IMAGE is based upon the accuracy of social security and DHS databases, the known inaccuracy of these databases is a cause for concern. There is another reason to worry. Participating employers must use the Social Security Number Verification Service (SSNVS) for wage and reporting purposes and make a good faith effort to correct and verify the names and Social Security numbers of its current workforce and work with employees to resolve any discrepancies. The idea is to make sure that individuals are credited with the correct FICA withholding. It is not designed to verify work authorization or the lack of same. [4] In fact, using SSVNS for this purpose may be inherently discriminatory. So, by participating in IMAGE, and getting on ICE’s good side, does this mean that an employer may run afoul of IRCA’s anti-discrimination provisions? Suppose you get bad news from the SSNVS. What then? This does not tell you anything about the employee’s immigration status nor can you, or anyone acting for you or at your direction, take any adverse action against this employee. That is illegal! On the other hand, the SSA tells us that the employer can advise the employee to take corrective action. If the employee is unable to provide an SSN that can be successfully verified by SSNVS, SSA instructs employers to document its efforts to obtain the corrected information and keep these records for at least three years.

SSA does not advise employers to fire the worker. Lastly, no employer should use the SSVNS to prescreen job applicants or only when they think the employee looks or sounds “foreign.” An excellent and easily digested summary of key facts about IMAGE has been compiled by the National Immigration Law Center. Conclusion While ICE is aggressively pushing IMAGE, especially where the Employer has a history of I-9 trouble, the need to look both ways before signing up is all too real. Remember too that ICE and its sister agencies elsewhere may not think alike. A good example is the Social Security Number Verification Service. There is an obvious tension between ICE’s expectations with respect to an employer’s reliance on the SSVNS and the Office of Special Counsel for Immigration-Related Unfair Practices. While ICE may approve of an employer using the SSVNS to make hiring or firing decisions, OSC will look at it from a different perspective and may sanction the employer. Hence, an employer who has signed onto IMAGE continues to play a balancing act. The prudent employer should err on the side of caution and pay heed to potential discriminatory actions even as ICE encourages use of the SSVNS under the IMAGE partnership. *Portions of this blog were excerpted from  Keeping Track: Select Issues In Employer Sanctions And Immigration Compliance  by Gary Endelman and Cyrus Mehta .,0216-endelman.shtm ( December 8, 2010).

[1] Employers who sign up can tell the world that they are “IMAGE Certified”. It may not be an occasion for rejoicing.”Essentially,” observes former AILA national president Charles Kuck, “being enrolled in the IMAGE program is like inviting ICE into your HR department, and letting them screen every hire for you…It means you have or will be writing checks to the federal government, regardless of how good you believe your I-9 recordkeeping is.”,022-kuck.shtm [2] Once you allow ICE to audit your company as part of IMAGE, you may get an informal two-year moratorium on future I-9 audits.  See Roger Tsai, “THE IRCA- TWENTY YEARS LATER”. If ICE does come after you, it might not cost as much: “Participation may be considered a mitigating factor in the determination of civil fine amounts should they be levied.” See U.S. Immigration and Customs Enforcement. ICE Mutual Agreement Between Government and Employers. [3] The extent to which an employer can demand strict adherence to these “best practices” depends, in large measure, upon the quality and zeal of its own adherence. As a skeptical expert sagely observed: “The main problem here is that, if the employer’s adherence to all nine ICE-recommended practices is in question, an employer cannot in turn reasonably require its contractors do so.” See Anthony Weigel, “Thinking Twice About Partnering With ICE- An Analysis of ICE’s ‘Best Hiring Practices’ and IMAGE” IMMIGRATION LAW WEEKLY. [4] For this reason, workers who feel themselves so aggrieved should be made aware of their right to contact or file a complaint with the Office of Special Counsel for Immigration-Related Unfair Employment Practices(OSC). The OSC makes available charge forms on their website. Workers can also call at toll-free hotline at 800-237-2515. Interestingly, there is also an automated employer hot line at 800-255-8155 or 800-362- 2734.