The U.S. Immigration and Customs Enforcement (ICE) agency is stepping up its program to promote IMAGE (ICE Mutual Agreement between Government and Employers). IMAGE is a voluntary program under which ICE will “partner with companies representing a broad cross section of industries in order that these firms may serve as charter members of IMAGE and liaisons to the larger business community.”

IMAGE subjects a participating employer to standards far higher than normally required by the law that can pose unintended consequences for employers. Improper and inconsistent application of the complicated IMAGE employment-verification system could expose employers to claims of discrimination. Further, while adopting the “best practices” requirements through IMAGE is meant to enhance legal compliance, the additional requirements on participating employers could lead to a heightened risk of technical errors.

The initial steps for IMAGE require a participating employer to:

1) Complete a self-assessment questionnaire
2) Enroll in E-Verify
3) Enroll in the Social Security Number Verification Service (SSNVS)
4) Undergo a Form I-9 audit by ICE
5) Review and sign an official IMAGE partnership agreement with ICE

In addition, employers must take steps to comply with ICE’s “best practices,” which include:

1) Establishing a written hiring- and employment-eligibility verification policy
2) Establishing an internal compliance and training program that includes I-9 training, fraud detection and use of SSNVS and E-Verify
3) Restricting the conducting of I-9 and E-Verify processes to individuals who have received training
4) Arranging for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and E-Verify processes
5) Establishing a self-reporting procedure to report to ICE violations or discovered deficiencies
6) Establishing a procedure to report to ICE credible information of suspected criminal misconduct in the I-9 process
7) Establishing a program to assess subcontractors’ compliance with employment-eligibility verification requirements, encourage contractors to incorporate IMAGE Best Practices, and, when practicable, incorporate the verification requirements in subcontractor agreements
8) Establishing a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized workers and a protocol for responding to employee tips

According to ICE, the benefit to employers is credibility and access to training, including on the latest illegal schemes used to circumvent legal hiring processes. Furthermore, ICE will review the hiring and employment practices of IMAGE partners and “work collaboratively with them to correct isolated, minor compliance issues that are detected.”

While ICE claims that “Image Certified” will become the industry standard as it relates to unauthorized employment verification, since its inception nearly four years ago, adoption of the program by employers remains low (see attached is the list of “IMAGE Certified" Companies). Most companies reject IMAGE because of the many additional burdens it creates, many of which may result in additional costs and unnecessarily high standards.

Is it worthwhile for a company to become IMAGE Certified? Employers must weigh the risks and costs of the compliance obligations against the two primary benefits: (1) the value of the “IMAGE Certified” credential and (2) additional access to training and information. Employers should carefully review the new IMAGE initiative before deciding to participate.