The Image of IMAGE (A Response to “A New and Improved I-9 IMAGE”)
[Editor’s note: this is the second article in a two-part series on ICE’s IMAGE program. Today,Nancy Jo-Merritt of Fennemore Craig, P.C. responds to Jared Leung’s review of the IMAGE program.]
Jared’s thoughtful discussion of his experience at ICE’s IMAGE training session reads like he was given a comfy chair, then handed a glass of chocolate milk and a bowl of M&Ms before the presentation. (Jared, I know you were at an “upscale hotel,” with “refreshments” and “great speeches,” but did you forget that the E in ICE stands for “enforcement?”)
Ok, enough of the razz. In fact, the IMAGE program is interesting and is an excellent alternative to raids and the long ago INS practice of taking boxes of I-9s which were never returned or seen again (I am not making this up; somewhere in a former INS office in Phoenix there are several boxes of I-9s taken for “inspection” in 1991 and never returned). So I’m not writing to diss this new program. It is gentlemanly (I’ve not yet seen a female ICE Auditor), orderly, and user friendly, even without the chocolate milk and M&Ms. For a number of years, enforcement of IRCA was unfocused and sporadic. The former INS spent little time with employers, but used its investigators primarily as an internal border control contingent, focused on deportation and removal activities.
More recently, the formation of the Department of Homeland Security and the assignment of enforcement to ICE resulted in a number of new programs. With respect to IRCA enforcement, ICE has chosen to develop tools to assist employers in managing their responsibilities under IRCA, including the E-Verify program, and a new focus on employer “audits” of the employment verification procedures. The IMAGE program was developed to allow ICE to “partner” with employers with respect to the employment verification requirements of IRCA.
Certainly, IMAGE contains excellent guidelines for the private employer. Provide training regularly, audit your I-9s and I-9 procedures at least annually, and consider the use of SSNVS (Social Security Name Verification Service) in conjunction with the I-9 (While IMAGE suggests an internal annual audit, our experience is that internal audits are always less than thorough and accurate – we suggest employers use outside auditors who look at the I-9s with new eyes.)
The IMAGE worksite “partnership” activities are not particularly onerous, but as a practical matter, the IMAGE program creates more frequent review and a closer connection with ICE than an employer would expect if not enrolled in IMAGE. The employer activities required by the IMAGE program, excepting the required ICE audit and the potential for reduced fines, provide little specific benefit to the employer. It’s important to note that the demands of IRCA compliance are not mitigated for IMAGE participants; the program provides managerial assistance, a sometimes unwanted oversight, and direct contact with ICE “auditors.”
Employers who follow ‘best practices’ with respect to employment verification management find that they are following similar practices required of IMAGE “partner” requirements. For example, reasonable rules for a best practices employment verification management program include:
- Annual “outside” audits of the employment verification systems and procedures;
- Prompt management of troublesome issues;
- Annual training of personnel responsible for employment verification;
- Careful tracking of expiration dates;
- Use of E-Verify
In jurisdictions where E-Verify is not a requirement, we suggest that our clients who prefer not to use E-Verify consider using the SSNVS verification program provided by the SSA. SSNVS may be used not only on all new employees in conjunction with the I-9, but where serious questions arise after hire regarding the accuracy of an employee’s claim to be work-authorized. An employee’s SSN, provided on the required SSA Form W-9 at the time of hire, may be checked at any time during the employment period, if reasonable facts indicate the SSN may not relate to the employee. If SSNVS cannot verify the number with respect to the individual’s characteristics (name, birthdate, gender, SSN), the employee should be notified and given a reasonable time to clarify or respond. We suggest 60 days, during which employment may continue. We caution that it is never wise to ignore indicia of a mismatching SSN category.
In summary, the IMAGE program has some benefits, but carries burdens that must be evaluated before making a decision to become “a work force compliance partner” with ICE. Alternatively, employers may develop a matrix of policies that mirror the compliance benefits of IMAGE, and forego the partnership relationship. That last sentence would be my choice, but I fully understand that employers who believe they are at greater risk may prefer a workforce compliance partnership with ICE, remembering that “E” stand for “enforcement.”