People First - October 2006

Employment Eligibility Verification

A New Effort to Control Immigration

by M. Annelle Lerner

The issue of illegal immigration appears to be on everyone’s mind these days. Employers are now being courted by an unlikely source – the Immigration and Customs Enforcement (ICE). ICE is touting a program newly announced by the Department of Homeland Security (DHS) called ICE IMAGE, or ICE Mutual Agreement between Government and Employers.

Under IMAGE, ICE hopes to partner with companies representing a broad cross-section of industries so these firms may serve as charter members of IMAGE and as liaisons to the larger business community. As part of the program, employers must: submit to an Employment Eligibility Verification (Form I-9) audit conducted by ICE and use the Employment Verification Program to verify the employment eligibility of all new hires. However, employers will also be required to:

• Establish an internal training program;

• Create an in-house review of I-9 and Employment Verification Program compliance and use an outside auditor to conduct annual I-9 audits;

• Establish a self-reporting system for violations and create a tip line for employees to report illegal activity with respect to the hiring and retention of unauthorized workers;

• Establish protocols for addressing Social Security Administration mismatch letters and ensuring that subcontractors adhere to the same "best practice" guidelines;

• Create and maintain safeguards against discrimination;

• Submit an annual report to ICE that describes the results and effects of their participation in IMAGE.

ICE will provide training and education to its IMAGE partners on proper hiring procedures, fraudulent document detection and anti-discrimination laws. ICE will also share data with employers 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.

Those companies that comply with the terms of IMAGE will become "IMAGE certified," a distinction that ICE believes will become an industry standard.

Although the program appears to be well thought out, providing training, ongoing support, best practices, etc. for some, it does appear that ICE has found another way to levy business relationships to lighten its own burdens as the news continues to report that the organization is overburdened.

The benefits of the program are obvious: compliance, decreased identity theft and uniformity. However, questions must be asked regarding the agency’s ability to manage what could become a huge and costly program. Has funding been earmarked to ensure system upgrades? Will this program become mandatory? What happens to those same "certified" employers if an error does occur? Will the employer or employee be held accountable? Who will bear the cost? How often will the training and "ongoing communication" occur? Who’s creating the "best practices"? Have they enlisted the Society for Human Resource Management (SHRM) or the American Society for Training & Development (ASTD) in the process (two of America’s leading human resource and training organizations)?

I would suggest that before you consider affiliating with ICE and their IMAGE Program, consult with counsel; seek input from your industry liaison groups, as well as from SHRM and ASTD. Understand your options and your rights. Many companies have already been using the Employment Verification Program; however, IMAGE would require much more.

For those companies interested in learning more about ICE’s IMAGE Certification Program, a full list of best practices and program materials can be found at www.ice.gov.

M. Annelle Lerner
M. Annelle Lerner is a human resources consultant based in Las Vegas.