What is IMAGE?
Initiated in July of 2006 and administered by Immigration and Customs Enforcement (ICE), IMAGE is a voluntary partnership between ICE and private sector employers. IMAGE, or ICE Mutual Agreement between Government and Employers, is a program in which employers self-police their hiring practices and share pertinent information with ICE. As the police arm of DHS, ICE is charged with enforcing our nation's immigration laws and extols IMAGE on its website, stating that "[IMAGE] is designed to foster cooperative relationships and to strengthen overall hiring practices." According to ICE, IMAGE was developed as an initiative to ensure employer self-compliance and prevent or reduce any hiring or retention of unauthorized workers. While IMAGE does not promise 100 percent accuracy in preventing unauthorized employment, ICE touts the program as enhancing fraudulent document awareness through education and training.
IMAGE=Safe Harbor?
While IMAGE participation may be a mitigating factor in the determination of any civil penalty for hiring unauthorized workers, IMAGE does not provide any safe harbor for employers. Pursuant to the Immigration and Nationality Act (INA) 274A, employers who knowingly hire, recruit or continue to employ unauthorized workers can be subject to fines, penalties and other sanctions. The word "knowingly" includes actual and constructive knowledge: if the employer should have reasonably known an individual was unauthorized, the company and key management may be held liable. Although participation in IMAGE is not a defense per se, good faith compliance and completion of the I-9 Employment Verification form is a statutory defense. Nevertheless, IMAGE membership is encouraged by ICE in the government's attempts to prevent unauthorized work in the first place.
IMAGE Requirements
As part of the IMAGE program, employers must agree to receive training, oversight, and direction from ICE as to its hiring practices and policies. Specifically, employers seeking to participate in IMAGE must agree to:
- Allow ICE to review hiring and employment practices and policies and recommend to companies ways to correct compliance issues.
- Permit ICE to identify schemes used to circumvent hiring and employment processes and help to educate employers on common schemes.
- Work collaboratively with ICE whenever ICE discovers minor and isolated potential misconduct.
- Complete a self-assessment questionnaire.
- Enroll in E-Verify (voluntary online system run by the Department of Homeland Security that permits employers to determine new employees' eligibility to work in the United States.
- Enroll in the Social Security Number Verification Service (online system run by the Social Security Administration to check social security numbers; the system is not designed to determine immigration status).
- Adhere to IMAGE Best Practices detailed by ICE, see http://www.ice.gov/image/best-practice.htm.
- Undergo an I-9 audit conducted by ICE.
- Sign an official IMAGE partnership agreement with ICE.
In turn, ICE would agree to attempt to minimize any business disruptions resulting from a company's self-disclosure of possible violations and keep the related information confidential to the extent permitted by law.
Considerations Before Joining IMAGE
To date, there are approximately 80 "full" members of IMAGE, some of whom may have agreed to participation after already being subject to ICE investigations or sanctions. Tyson Foods, Inc. joined in January 2011 as a full compliance member, the biggest corporation to do so. In late 2001, Tyson executives were indicted for allegedly conspiring to smuggle illegal immigrants to work at the company. After the executives were acquitted, the company has been steadily working to improve its public and governmental credibility as a law-abiding corporation, first signing onto E-Verify and now participating in IMAGE. Trade associations can also become "endorsee" partners by signing an endorsement agreement stating that they support and highly recommend the use of the IMAGE. Associations need not comply with the specific IMAGE requirements.
Critics of IMAGE state that joining could actually open up a Pandora's box of headaches: threat of immediate enforcement by ICE such as termination of a percentage of workforce; threat of civil and criminal penalties for workers who are later found to be unauthorized; even potential violations of fiduciary duty to the company's stockholders for voluntary exposing the company to liability. Critics maintain that compliance with all I-9 requirements will not prevent a company from inadvertently employing unauthorized workers, because the I-9 only requires the employer to verify that the identity and authorization documents appear on their face to be genuine and related to the new hire. Moreover, enrollment in E-Verify is a system still vulnerable to fraud, misuse, and errors. For a full report on the problems with E-Verify, see General Accounting Office reports at http://www.gao.gov/new.items/d11146.pdf. Moreover, E-Verify may not be used for existing employees, only new hires, which may defeat the purpose of joining the program to check compliance. Given the fact that IMAGE participation does not provide any safe harbor or defense against liability, employers may be reluctant to expose the company and its employees to government scrutiny.
Best Practices for The Best Image
For the majority of employers who have not signed onto IMAGE, best practices to ensure compliance with immigration laws are to ensure proper completion of I-9 forms for every employee hired on or after November 6, 1986. Moreover, employers should not put their heads in the sand if evidence arises that an employee may be unauthorized. Employers must investigate reasonable cases, and terminate any employees found to be unauthorized. On the other hand, employers should be aware that overzealously investigating an employee, using the I-9, form or other means, may result in liability for unfair employment practices or document violations. Employers who ask for specific documents on the I-9 form, or require documents beyond those listed on the firm, can be sanctioned for document abuse. The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practice will investigate suspected cases of document abuse, as well as enforce INA 274B, the statute that prohibits employment discrimination that is based on an individual's national origin or citizenship status. Whether employers consider IMAGE participation or not, they must walk the tightrope between compliance mandated by ICE and employee rights cautioned by the OSC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
