By Bruce E. Buchanan**

Immigration and Customs Enforcement (ICE) - Homeland Security Investigations (HSI) created IMAGE (ICE Mutual Agreement between Government and Employers) in July 2006 to build relationships with employers that strengthen hiring practices and encourage employer compliance in ensuring a lawful workforce.

Initial IMAGE Program

Initially, IMAGE got off to a slow start with very few employers enrolling in the program.  One of the initial problems was that employers were agreeing to an ICE inspection as part of IMAGE but ICE was not agreeing to waive any fines or penalties for substantive errors.  Thus, most employers could not see any real advantage to enrolling in IMAGE.

ICE Changes IMAGE to be More Employer-Friendly

Most likely as a result of low enrollment, ICE changed the IMAGE program several years ago to waive any fines if substantive violations were discovered on fewer than 50% of the I-9 forms.  However, ICE still has the authority to issue fines if more than 50% of the I-9 forms contain substantive violations although the fines would be at the statutory minimum of $110 per violation. Don Baker, the Section Chief for Worksite Enforcement in Washington, D.C., stated at a recent seminar in Atlanta, ICE-HSI has not fined any employer with more than 50% error rate even though it has the authority.  As the Mr. Baker stated, no employers would enroll in IMAGE if they knew they were going to be fined. And this is exactly why most employers have been reluctant to enroll in IMAGE.

What is IMAGE?

In order to enroll in IMAGE, an employer must sign the IMAGE Agreement. In signing the Agreement, an employer is agreeing to a number of actions. Specifically, they are:

     1. Within 60 days of signing the agreement, enroll in the Department of Homeland Security’s E-Verify program and process all future employees though the E-Verify program;

     2. Within 120 days of signing the agreement, establish a hiring and employment eligibility verification program, or provide evidence of an existing program, that includes (a) at least one annual internal I-9 form audit and (b) hiring procedures to prevent the employment of   unauthorized workers.

     3. Agree to fully implement the IMAGE program for a minimum of two years;

     4. Submit to an ICE I-9 inspection and to resolve any identified deficiencies;

     5. Participate in the Social Security Number Verification Service (SSNVS) but only to be used for payroll, not for employee verification;

     6. Establish an internal compliance and training program related to the hiring and verification process;

     7. Establish self-reporting procedures to inform ICE of violations or deficiencies;

     8. Establish a tip line for employees to report activity, which relates to the employment of unauthorized workers and a protocol for responding to credible employee tips;

     9. Report immediately to ICE the discovery of credible information of suspected criminal misconduct in the employment eligibility verification process;

    10. Ensure that contractors and subcontractors establish procedures to comply with employment eligibility verification requirements. Encourage contractors and subcontractors to use IMAGE best practices, including E-Verify;

    11. Establish appropriate policies to avoid anti-discrimination allegations during the I-9 form, E-Verify and SSNVS processes; and

    12. Maintain copies of any documents accepted as proof of identity and employment authorization with the I-9 form for all new hires.

ICE agrees to the following:

     1.  Waive any applicable files if substantive violations are discovered on fewer than 50% of the Forms I-9 reviewed as part of the inspection. In instances where more than 50% of the Forms I-9 contain substantive violations, ICE agrees to either mitigate any applicable files or issue fines no higher than the statutory minimum of $110 per substantive violation;

     2. Refrain from conducting an additional I-9 form inspection for a minimum of two years, absent the existence of specific and credible evidence of knowingly employing undocumented workers; and

     3. Grant the employer ample time to resolve discrepancies discovered during the I-9 form inspection.

ICE-HSI is actively promoting IMAGE. They have IMAGE coordinators and are holding seminars with employers and some attorneys promoting IMAGE.

Conclusion

Each employer, with the advice of immigration compliance counsel, needs to make their own decision as to whether to enroll in IMAGE. Many of its aspects, use of E-Verify, conduct an annual internal audit, establish an I-9 Compliance policy, train personnel on the correct procedures, do not engage in citizenship status or national origin discrimination, and maintain copies of documents supplied for employment authorization, should be incorporated in a sound I-9 Compliance policy.

The major drawback is granting ICE access to your facility to conduct an I-9 audit. As one HSI-ICE official stated their agency is there to help employers. However, it reminds me of the old saying, “I’m with the government and I’m here to help you.” Thus, the decision to enroll in IMAGE is a difficult one.

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*This article was adapted from my article written for HR Professionals Magazine, which can be found at http://hrprofessionalsmagazine.com/what-is-ices-image-program-and-should-employers-enroll/.

**Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law. Bruce is the Chair of the Immigration Law Section.  He writes a blog on employer immigration compliance for ilw.com, located at www.EmployerImmigration.com, and is a contributor toLawLogix’sI-9 and E-Verify Blog, located athttp://www.lawlogix.com/blog and HR Professionals Magazine. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.