By: Dave Fowler

IMAGE (ICE Mutual Agreement between Government and Employers) is program in which ICE (Immigration and Customs Enforcement) partners with employers to promote the employment of a legal workforce. On August 9-10, 2010 ICE held the 2010 IMAGE Employer Training Conference in Washington, D.C. I attended this conference and also met with representatives at E-Verify so, I thought I’d share some of the information.

First, there were about 100 attendees along with ICE leadership, special agents, and subject matter experts. The speakers included notables such as Alonzo Pena, ICE Deputy Director, Jim Spero ICE Deputy Assistant Director, and Brett Dreyer, Worksite Enforcement Unit Chief. Other speakers included representatives from the Executive Office of Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO); the US Attorney’s office; the Office of Special Counsel; Office of Principal Legal Advisor; Forensic Document Laboratory; SSA; and E-Verify.

• ICE’s top priorities are to penalize employers who knowingly hire illegal immigrants, deter employers from hiring illegal immigrants, and take advantage of compliance tools.
• ICE I-9 audits are no longer random but primarily driven by leads and other information.
• ICE prioritizes opportunities and will address the largest offenses first.
• ICE is increasing outreach programs to educate employers on such things as properly completing I-9s and hiring best practices.
• ICE is increasing its capacity to do more I-9 inspections.
• ICE Worksite Enforcement focuses on:

1. Critical infrastructure protection
2. Egregious employers (illegal immigration is part of the business model)
3. Compliance inspections
4. Outreach and education (IMAGE)

• ICE is not responsible for enforcing E-Verify.
• ICE has increased the number of I-9 auditors and has dropped the term ‘forensic’ from their title. Auditors are instructed to be reasonable and focus on compliance.
• ICE and DOL will be signing a MOU to cooperate regarding illegal immigration.
• Copies of employee documents for the I-9 can be retained on paper or electronic format.
• Hardcopy document copies must be able to be presented with the I-9s upon inspection. (The employer cannot hand the auditor a stack of documents for the auditor to match to the I-9s.)
• If an employer is audited, the employer should work with the ICE Special Agent in charge and not the auditor. The auditor is not a law enforcement officer and has no law enforcement powers.
• An effective compliance program is very important to avoiding penalties and prosecution. Having a formal compliance program with documentation and adhering to it can show Good Faith.
• SSA processes 240 million W-2s per year.

1. 10% of W-2s don’t have a name and SSN that match (24 million).
2. 5% of the mismatched W-2s get fixed by SSA (12 million).
3. 12 million W-2s per year cannot be matched by SSA.

• June 25, 2011 – Randomization of SSNs starts. SSA is running out of SSNs in certain parts of the country. The first 3 digits identify where the SSN was issued. With randomization the first 3 digits will no longer identify where the SSN was issued.
• 216,700 employers use E-Verify.
• E-Verify Case Statistics

1. FY2008 – 6.6 million E-Verify cases
2. FY2009 – 8.7 million E-Verify cases
3. FY2010 – 13.4 million E-Verify cases since October 2009

• Passports will be incorporated into the Photo Matching tool in September 2010. E-Verify Employer Agents (formerly Designated Agents) will have 6 months to implement the E-Verify Web Services version (anticipated to be version 22) into their applications.
• E-Verify will be releasing new versions of their documentation in September 2010.
• The E-Verify Self Check application will not be released in December 2010. The timeframe is now sometime during the winter, which may be sometime in Q1 2011.
• E-Verify will provide speakers for free to groups of 30 or more attendees.
• Three quarter view photos were the first biometric feature on cards. A person’s ears are fully developed in terms of shape by the age of 5 and only change in size as the individual gets older. Safe crackers used to put their ear next to the tumblers to crack a safe and they left ear prints.
• Create and follow a SOP (Standard Operating Procedure) document for I-9, E-Verify, and hiring.
• Use a UV (ultra-violet) light/flashlight to check a drivers’ license for fraud. Under UV light there is a seal in the middle of the front of the document that jumps out brightly.
• A flashlight placed behind an EAD/PRC document will show red. (There is a red layer of plastic in the center of the card.)
• There will be a notice of proposed rulemaking regarding Form I-9 published in the Federal Register (www.regulations.gov) and open for comment in 2011 sometime after the first of the year.
• There are two general types of immigration cases.

1. Civil – prosecuted by OLPA
2. Criminal – prosecuted by Assistant US Attorney

• Civil Cases

1. Notice of Inspection (NOI) issued to the employer
2. ICE I-9 audit
3. Special Agent in Charge (SAC) oversees the audit and the auditor
4. SAC sends the Notice of Intent to Fine (NIF) to OSC office of chief counsel
5. NIF served on the employer
6. Employer can pay the fine or request a hearing, the employer has 30 days to request a hearing
7. Settlement agreement
8. Final order on hearing (there is no statute of limitations on a hearing, it could be years before the employer is notified of a hearing)
9. Hearing

• There is one judge who hears the civil cases brought by ICE.
• Three-day rule violations have a statue of limitations of 5 years. After 5 years, there can be no penalty.
• Other violations are considered continuing violations up until the time they are corrected. (Fix your I-9 errors as soon as you find them!)
• The retention period for copies of employee documents made for the I-9 is the same as the retention period for the I-9.
• E-Verify is reviewing a request by the American Payroll Association’s Immigration Subcommittee to allow the employee to provide copies of documents subject to the E-Verify Photo Matching tool.
• Employers can use the USPS to send a copy of an employee’s Photo Matching document to DHS provided the photo is received in a timely manner and sufficiently prior to the 8 government workdays the employee has to contact DHS.
• In addition to English and Spanish E-Verify now provides notices and letters in Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog, and Vietnamese. If the employee does not fully understand English, and speaks Spanish, Chinese, Haitian-Creole, Japanese, Korean, Russian, Tagalog, or Vietnamese, you must provide the employee with the notice or letter in one of these languages. In addition, you must give a copy of the notice or letter in English to the employee and retain a copy of the English notice or letter with the employee’s Form I-9.