A Revamped IMAGE Program – Is it Worth Joining?

By Bruce E. Buchanan

Recently, Immigration and Customs Enforcement (ICE) has been actively soliciting employers to watch an IMAGE (“ICE Mutual Agreement between Government and Employer”) presentation and thereafter join the IMAGE program. Is IMAGE better than before? If so, should employers consider joining IMAGE?

IMAGE is a voluntary program established in 2006 by ICE that allows employers to partner with ICE to reduce unauthorized employment. In two recent ICE I-9 inspections, ICE agents have solicited my clients to join IMAGE. In a Tennessee case, ICE offered to issue a Warning Notice in lieu of $40,000 in penalties, if ICE could present an IMAGE PowerPoint to the employer. The employer quickly accepted. ICE agents came to the employer’s facility and presented a PowerPoint presentation that was similar to the one that I attended in 2014 at an ICE conference in Atlanta. In another inspection in Arkansas, ICE agents solicited an employer to join when they went to an ICE office to receive a Warning Notice.

What is IMAGE?

Employers seeking certification in IMAGE must agree to:

• Complete the IMAGE Self-Assessment Questionnaire (Application);
• Enroll in the E-Verify program within 60 days;
• Establish a written hiring and employment eligibility verification policy within 120 days;
• Agree to conduct a yearly internal Form I-9 audit;
• Submit to an initial I-9 Inspection with no further ICE inspections for at least four years;
• Commit to follow ICE’s best employment practices; and
• Review and sign the IMAGE partnership agreement with ICE.

What is ICE committed to under IMAGE?

ICE will waive all potential fines unless there are criminal violations. Previously, ICE would waive penalties if substantive violations were discovered on fewer than 50% of the required I-9 forms; and if over 50% of the I-9 forms had substantive errors, ICE would mitigate the fines to the statutory minimum. According to a top ICE official, even before this change, ICE had never fined any employer with more than 50% error rate.

What are Other Changes in IMAGE?

Other changes from the earlier version of IMAGE are:

•  Undergo an ICE I-9 inspection every four years, where previously it was every two years;
• Establish a written hiring and employment eligibility verification policy within 120 days, not 60 days; and
• Allowing some employers under an ICE inspection to join IMAGE during the investigation, thereby eliminating any penalties.

What are ICE’s Best Employment Practices?

The following are IMAGE best employment practices:

• Use E-Verify to verify the employment eligibility of all new hires.
• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes.
• Establish a written hiring and employment eligibility verification policy.
• Establish an internal compliance and training program relating to the hiring and employment verification process, including completion of Form I-9, how to detect fraudulent identity documents in the verification process, and how to use E-Verify and SSNVS.
• Conduct an annual internal Form I-9 audit.
• Require the Form I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review process to minimize the potential for a single individual to subvert the process.
• Establish a procedure to report to ICE/HSI credible information of suspected criminal misconduct.
• Ensure that contractors and subcontractors establish procedures to comply with employment eligibility verification requirements and encourage the IMAGE best employment practices.
• Set protocols for responding to Social Security Administration no-match letters.
• Establish a tip line for employees to report activity that relates to the employment of unauthorized workers and create a protocol for responding to credible employee tips.
• Establish policies, practices, and safeguards to avoid anti-discrimination allegations during the Form I-9, E-Verify, or SSNVS processes.
• Maintain copies of any documents accepted as proof of identity and employment authorization with the Form I-9 for all new hires.

Are these Changes Going to Make Employers Want to Join IMAGE?

Among immigration attorneys, voluntarily entering IMAGE is normally frowned upon because of the necessity of undergoing an ICE I-9 inspection. However, have the ICE improvements made it worth joining? If your client is the subject of a Notice of Inspection and you foresee sizable penalties, it well may be best to join IMAGE to avoid penalties.

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 may be incorporated in an Immigration Compliance policy – use of E-Verify, if required under state law, conduct an annual internal audit, establish an Immigration Compliance policy, train personnel on the correct procedures, not engage in citizenship status or national origin discrimination, and maintain copies of documents supplied for employment authorization. Thus, an employer may maintain a number of the good points of IMAGE without actually joining IMAGE. But only IMAGE will waive potential I-9 penalties.

The major drawback to IMAGE is granting ICE access to your facility to conduct an I-9 audit. ICE officials like to say, “we’re with the government and we are here to help you.” This motto does not make employers more desirous to join IMAGE.