What Employers Really Think of ICE's IMAGE

Ann Cun

According to the current LawLogix August Poll, more than 80% of respondents agree that E-Verify should be mandated nationally (in one form or another). I suspect though, part of that might just have to do with information fatigue. Most employers, I suspect, just want an easy to follow, (somewhat simple) rule that applies the same for every employer across the board in every state rather than the current patchwork of laws!

What’s IMAGE?

Meanwhile, IMAGE, the Immigration Customs Enforcement’s (ICE) federal program, has yet to gain the same amount of popularity as E-Verify. IMAGE stands for ICE Mutual Agreement between Government and Employers and is a “voluntary partnership initiative between the federal government and private sector employers.” The objective of the program is to help employers improve their hiring practices for authorized workers and to comply with federal immigration rules.

Last November, guest authors Jared Leung and Nancy-Jo Merrit, both Attorneys of Fennemore Craig, P.C. of Arizona, attended an IMAGE presentation offered by ICE and wrote about their impressions of the program on our blog (Part 1 and Part 2).

Despite heavily promoting the benefits of becoming a Certified IMAGE Partner, the IMAGE Program still seems to pale in the number of employer enrollment (in comparison to E-Verify). While it’s unfair to compare the two federal programs as their objectives are very different, it still begs the question of how employers perceive the IMAGE program. Are the benefits enough to overcome the idea of voluntarily inviting the government to scrutinize your I-9 records and hiring practices? How can the program be improved to solicit more voluntarily partners to become certified? Or can it?

The Benefits of IMAGE

According to ICE’s website for IMAGE, some of the benefits of certified partners include:

• Avoid lawsuits and legal actions resulting from unauthorized employment

• Fine mitigation:

o ICE will waive potential fines if substantive violations are discovered on fewer than 50% of the required Forms I-9

o If 50% of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum ($110/violation)

• No Form I-9 inspection for a minimum of two years

• ICE provided training and guidance on proper hiring procedures and fraudulent document awareness

Employer Concerns About IMAGE

Benefits notwithstanding, I think it’s fair to say that issues regarding the scope of how deep ICE will inspect hiring practices needs clarification. Last April, I wrote about the IMAGE presentation Adam Wilson, IMAGE Unit Chief made with Ms. Sharon Mehlman, Partner at Larrabee | Mehlman | Albi | Coker LLP in San Diego, California during the 2nd Annual Worksite Immigration Compliance Symposium at Stanford Law School. Some of the concerns addressed during the presentation were questions that employers had regarding the IMAGE program:

• Employers must agree to submit to an I-9 inspection in order to be certified as an IMAGE employer. After an employer submits to an I-9 inspection, what documents will ICE be reviewing? Will it include only current I-9 forms or past I-9 forms? How far back in time will the inspection look?

• How much time will employers receive to correct errors discovered on I-9 forms? Is it the standard 10 days or will ICE provide more time?

• If there was an observation of a pattern and practice of discrimination, how will ICE deal with such issues? Would it be reported to the Office of Special Counsel or would the employer be able to work with ICE to achieve a satisfactory level of compliance?

Ms. Aimee Clark Todd, Attorney at Troutman Sanders LLP provided a different perspective on employer concerns. She indicated that employers have displayed a certain level of precaution when negotiating with ICE. Employers are concerned that “the process will not go as smoothly or be as advantageous as the IMAGE representatives portray it, based on ICE’s general approach to audits outside the IMAGE program.” As a result, Ms. Clark Todd indicated that employers are very careful to ensure that “the IMAGE agreement is modified as needed to include the specific terms that have been discussed with ICE.”

On the other hand, Ms. Clark Todd indicated the opposite for companies who might voluntarily become a certified IMAGE employer.

[For employers] approached by the IMAGE representatives for potential participation in the program (and not as a result of an existing ICE audit or violation), discussions and negotiations have been quite open and productive, giving employers the opportunity to determine whether the IMAGE program is right for them.

The 10,000 Foot View

Overall, the IMAGE Program is an ambitious program. It provides critical tools, including 12 Best Practice Tips, to help employers streamline their hiring practices.

Certainly experiences on “the field” can vary from employer to employer based on whether an involuntary I-9 audit was involved or not. Given the challenges of varying perceptions and the current lack of clarification on the benefits of the IMAGE Program, employers are probably confused about the overall benefits of IMAGE. It may be helpful to unify the message of IMAGE by providing more clarification on the benefits in writing (preferably on their website) so that employers have a good place from which to refer when IMAGE representatives do approach them for a partnership.

Originally published by LawLogix Group Inc Reprinted by permission.

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.