Is the IMAGE Program Right for Your Business?

It may be time to take another look at the Immigration and Customs Enforcement (ICE) IMAGE program.  IMAGE stands for “ICE Mutual Agreement between Government and Employer”.  IMAGE was created in 2006 as an initiative designed to encourage employer compliance and strengthen hiring practices in order to curtail the employment of unauthorized workers.

Based on its original design, IMAGE was heavily slanted in favor of the government and gave little to no incentive for employers to join the program.  The original program required an employer to submit to an ICE I-9 audit and be subject to the same penalty structure as non-IMAGE employers.  As of January 2011 only 115 of the over 10 million employers in the U.S. had joined the IMAGE program.

Recognizing the existing IMAGE program to be a dismal failure, the government revamped the program in 2011 and began an educational campaign to give employers information about the new and improved, kinder, gentler IMAGE program.

To be IMAGE eligible an employer is required to:

• Enroll in the E-Verify program;
• Establish a written employment eligibility verification policy that includes internal Form I-9 audits at least once per year; and
• Submit to an inspection of their Forms I-9.

ICE agrees to:

• Waive potential fines if substantive violations are discovered on fewer than 1/2 of the employers I-9s;
• Where more than 50% of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue the minimum fine of $110 per violation;
• Not conduct another Form I-9 inspection of the company for 2 years; and
• Provide information and training after the inspection.

So, should you consider the IMAGE program for your business?  Opening your doors to the government can be a scary prospect and it is certainly not a decision to be taken lightly.   It is a good idea though to follow the government’s advice even if you choose not to participate in the IMAGE program.

Having a written company compliance plan is smart business and may very well help establish that your company takes Form I-9 compliance and employment eligibility verification seriously.  Conducting an internal audit will help you establish your current level of compliance, correct some mistakes, and establish a training program to move forward with stronger procedures.  These are all best practices to protect your business and mitigate the risk penalties during an ICE investigation.

Whether or not you decide to join in a partnership with the Federal government it is absolutely appropriate for you to heed their advice when it comes to addressing your Form I-9 policies and procedures.

No-Match Letters are Back!

Everything Old is New Again

The Social Security Administration (SSA) has resumed the sending of Social Security No-Match letters to employers.  These “No-Match letters”, also known as Decentralized Correspondence (DECOR) letters have been around since 1979 but were suspended in 2009 after the controversial DHS “No Match Rule” was rescinded.

The SSA had been sending these letters to employers when information provided by the employer did not match SSA records.  Though the letter may be daunting, it is possible the name and SSN combination cannot be matched for a variety of reasons including misspellings, transposed numbers, name changes or incomplete information provided by the employer. Unfortunately, mismatches may also be due to the use of false SSNs or identity theft.

On April 6, 2011, SSA resumed sending no-match letters to employers when the names or social security numbers listed on a W-2 form do not match SSA records. The purpose in sending these letters is to inform the employer and employee there is a database discrepancy which may affect future Social Security benefits.

The DECOR letter makes no statement about an employee’s immigration status and cautions employers that the letter is not a basis in itself to take any adverse action such as suspending or firing the employee.  A FAQ on the SSA website provides advice for employers in dealing with the no-match letter.

The letter also includes a “Privacy Act” notice which informs the employer the SSA may share the information with the IRS for tax purposes or with the Department of Justice. In addition, the Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) published revised guidance regarding how employers can respond to no-match letters in November 2010.

Upon receipt of a No-Match letter, an employer should proceed cautiously with the assistance of qualified counsel.

Final Rule –- Finally Final!

On April 14, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts the changes made to the Form I-9 process by the Department of Homeland Security in April 2009.  These changes to the Form I-9 went into effect in April 2009, including the rule that employers can no longer accept expired documents as proof of identity or work authorization when completing the form.

On December 17, 2008, DHS published an interim rule which included the following changes:

• Prohibits employers from accepting expired documents in Section 2;
• Removed Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” from the Lists of Acceptable Documents ;
• Added to List A the new U.S. passport card and  the temporary Form I-551, “Permanent Resident Card,” with a machine-readable immigrant visa;
• Added documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) to List A to more accurately reflect their status under the Compacts of Free Association;
• Amended the Form I-9 (Rev. 02/02/2009) to provide in Section 1 a separate box for noncitizen nationals.

The current version of the Form I-9 bears the expiration date of 8/31/12.

As is apparent with the new “old” rules and procedures, employers must stay vigilant to remain compliant with Form I-9 processes.  Implementing a comprehensive approach to I-9 compliance which includes formal training, written compliance policies, regular assessment audits, and the assistance of qualified specialists can help an employer navigate the complex process which is I-9 compliance.

Form I-9 Violations Bring Bad Press

Your company’s image is one of your most important assets. It is likely you have spent years and tens of thousands of dollars, maybe even millions, developing your brand. It is likely that you have a marketing plan and budget.  It is likely you spend a lot of time and energy developing your products and services to exceed your customer’s expectations.

What if It All Comes Crashing Down?

What if one day, it all goes terribly wrong? Ask Toyota. Their marketing plan shifted suddenly from promoting their products to damage control due to a very public defect in their cars was discovered. Hundreds of millions of dollars later, their reputation as “the” quality car maker has been irreparably damaged. They are now on a mission to repair the consumer’s trust it took them decades to earn.

What Does this Have to do with Form I-9 and Immigration Compliance?

Ask Chipotle. In the wake of an ICE (Immigration and Customs Enforcement) I-9 document inspection in Chipotle Mexican restaurants in Minneapolis, the restaurant chain fired hundreds of workers. The firings prompted protests in 9 states where protesters chained themselves together in restaurants and carried signs. According to Fox News9 in Minneapolis, 8 people were arrested during the protest in the Minneapolis restaurant.

As the immigration debate rages on and ICE continues its aggressive I-9 enforcement strategies, employers are at greater risk of this kind of negative publicity. The importance of 100% Form I-9 compliance is illustrated over and over again. The employer is responsible for completing the Form I-9 timely and accurately, updating the form when required, and retaining the form in accordance with the law.

The very sad fact is most companies get it wrong…even the ones who believe they are complying with Form I-9 requirements are not. If you haven’t had a qualified expert review your I-9 process, I can almost guarantee your company is at risk. Are you willing to bet your reputation on it?

Independent 3rd Party Form I-9 Audit

ICE considers an expert 3rd party Form I-9 audit a “Best Practice” in an employer’s effort to achieve full compliance. Failing to plan is planning to fail. What will happen if you “fail” an ICE inspection? Perhaps Chipotle’s mistakes will be the catalyst that drives you to seriously focus on your company’s Form I-9, Employment Eligibility Verification compliance and hire the right expert to assess your compliance efforts.

To discuss your particular situation with a Form I-9 professional, take advantage of I-9 Okay’s FREE 15 minute consultation.  Call 1-866-580-9390 today.

Are You an HR Person With an I-9 Mess on Your Hands?

While you may be a very capable Human Resources expert concerning Form I-9 issues, what if your predecessor was not?  Your company may be at tremendous risk because ICE auditors will not only look at your current I-9 forms, but will also request all of your terminated employees’ forms for the past 3 years.

How many costly I-9 compliance mistakes have been made that you may not be aware of?  We encourage you to take a look at your I-9 files on a regular basis.  You may be shocked at what you find.

If you have inherited an I-9 mess, it may be quite difficult to take those concerns to your boss.  However, you must take a proactive approach to make a good-faith effort to correct the documentation in order to avoid serious government fines.

Form I-9 Compliance Action Steps

1. Realize the Form I-9 is not as simple as it may appear and that fines for basic clerical mistakes start at $110.00 per form, per employee.
2. To help your boss understand the serious consequences of Form I-9 violations, emphasize employment eligibility verification is a legal requirement and non-compliance could result in substantial fines for the company.  The best way to avoid disaster is to focus on a full scale clean up of company I-9 procedures.
3. Get help!  You probably wouldn’t think of auditing the company’s tax records by yourself and you certainly should not consider auditing I-9 compliance by yourself. Over the years, the requirements of the Form I-9 have changed and it is important that any retroactive attempt at compliance be done within the constraints of the law.
4. Consider electronic completion and storage options.  This may be the best approach to cleaning up the I-9 mess in your file cabinets.
5. Identify and document “best practices” for moving forward in full compliance.  A qualified I-9 specialist can help develop the right procedures and practices for your business.

Employment Verification Laws

The times they are a changin’….

As President Obama pushes to reform the current immigration system, employers are under increasing pressure to follow Federal law requirements concerning hiring authorized workers while at the same time carefully monitoring State employment eligibility law as well.  Many people are following the debate about Arizona’s new immigration legislation while in South Carolina, one of the toughest employer sanctions laws in the country has slid in under the radar and gone mostly unnoticed by anyone not doing business in the state.

Employers across the country should be paying very close attention to Form I-9 requirements and E-Verify laws.  In just the last few months, several significant changes have taken place that impact how employers verify the identity and work eligibility of the people they hire.

• A newly redesigned Green Card (Permanent Resident Card).
• Changes to the Employment Authorization Document to increase document security have been implemented.
• E-Verify has been redesigned and new tools have been added.

E-Verify and the “Hire Date”

Perhaps the most significant change is what is being termed the “Thursday Rule” which now gives employers until the 4^th business day to utilize E-Verify.  Until recently the directive has always been 3 business days from the date of hire.

Amid this flurry of change, the Office of the Special Counsel for Immigration Related Employment Discrimination (OSC), had been actively investigating complaints against employers accused of improper use of the Form I-9 and/or E-Verify during the hiring process.  Morton’s Restaurant, Garland Sales, and even Macy’s department store have been accused of identity document abuse by asking new hires to produce more documents than are required for the completion of the Form I-9.

What once seemed to be just one more piece of paper to keep on file is now an albatross around every employer’s neck.  Failing to give the I-9 the attention it demands is costing businesses thousands of dollars.  Many employers mistakenly believe it is enough to have an I-9 on file for every employee.  These employers will ultimately pay the price. Since April 2009, ICE (Immigration and Customs Enforcement) has fined employers over $17 million for non-compliance based on technical and clerical errors on the Form I-9.

Many of these errors could have been identified prior to the ICE inspection had the company obtained an independent 3^rd party audit by a qualified I-9 specialist. An independent 3rd party audit is one of the best tools an employer can utilize to insure complete Form I-9 compliance.  By using an expert independent 3^rd party auditor, a business can take a proactive approach to correcting costly errors, identifying areas of non-compliance, and protecting their business against claims of discriminatory hiring practices.

It is time for every employer to wake up and realize the Form I-9 requires the same attention that tax forms and other legal and compliance issues require.  Failing to use an experienced Form I-9 specialist to assist your company in obtaining 100% compliance is putting your business at unnecessary risk of huge financial penalties as well as a public relations nightmare.   Don’t let the negative results of an ICE inspection of your company be the lead story on your local news!