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Thinking Twice About Partnering With ICE - An Analysis Of ICE's "Best Hiring Practices" And IMAGE

by Tony Weigel

At my son's recent grade school science fair, children were given empty plastic bottles to partially fill with colored water and the rest of the way with cooking oil. The children were then asked to shake their bottles and observe. Almost immediately the oil and water separated. In spite of my son's repeated, vigorous efforts, he observed that water and oil don't mix, and, after a period of time, the two separated completely. Employers should keep this basic science experiment in mind when considering the Immigration and Customs Enforcement's optional measures relating to I-9 employment eligibility matters.

In July of 2006, ICE announced two measures billed as "voluntary partnerships with the government." [1] The first is a list of what the agency considers to be "Best Hiring Practices." [2] The second is a voluntary program entitled the "ICE Mutual Agreement between Government and Employers," also referred to as IMAGE [3], which it has been working on since at least July of 2005.[4] The government is actively promoting these programs to employers.

Analysis of "Best Practices"

There are nine items listed as Best Hiring Practices. Two of the nine are generally recommended "basic" compliance measures, as an employer should have a protocol for dealing with Social Security Administration "no-match" letters [5] and make sure its I-9 processes are not discriminatory.

These four measures are reasonable options to consider:

  1. Arrange for semi-annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process;
  2. Use the Basic Pilot Program for all hiring; [6]
  3. Permit the I-9 and Basic Pilot Program process to be conducted only by individuals who have received this training - and include a secondary review as part of each employee's verification, to minimize the potential for a single individual to subvert the process; and
  4. Establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process.
It is critical to note that the last two items have some questionable content within each that should be examined more closely. In the third item, one should note that ICE is concerned that "a single individual" could "subvert" the process. With respect to the last item, Julie Myers, Assistant Secretary of ICE, has stated that "employers are not trained or obligated to be document detectives." [7] It seems that ICE wants employers to take more of an active role as deputized document detectives, even though not required and scrutinizing an employee's documents too closely could result in claims of discrimination.

It is questionable whether or not an employer should: "establish a protocol for assessing the adherence to the "best practices" guidelines by the company's contractors/subcontractors." The main problem here is that if the employer's adherence to all nine ICE-recommended practices is in question, an employer cannot in-turn reasonably require its contractors to do so.

These two recommended practices are even more questionable:
  1. Establish a self-reporting procedure for reporting to ICE of any violations or discovered deficiencies; and
  2. Establish a Tip Line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips.
Given ICE's aggressive criminal prosecution animus, an employer should seriously consider the consequences of implementing these practices. In many cases it is possible for an employer to identify and correct deficiencies and take appropriate actions. Furthermore, an employer should think through some of the more practical aspects of establishing a "Tip Line." Specifically, an employer should consider how such a mechanism specific to employment authorization: (a) could generate information based only on rumor or hearsay about an employee's employment eligibility, and (b) could be misused and lead to other employment-related liabilities.

Analysis of IMAGE

Employers seeking to voluntarily participate in IMAGE must first agree to submit to an I-9 audit by ICE and ensure the accuracy of their wage reporting by verifying the Social Security numbers of their existing labor forces, utilizing the Social Security Number Verification System.[8] An employer must then commit to the "Best Hiring Practices" listed above. ICE would then provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection and anti-discrimination laws. [9] ICE has also stated it will share data with employers on the latest illegal schemes used to circumvent legal hiring processes. [10] One of the primary benefits of being an IMAGE partner is confidence an employer will have a legal workforce and not suffer a loss of workers in the event of an ICE investigation or raid.

ICE may be able to impart some or most of this knowledge to a few people in an organization. In the real world, however, this knowledge above and beyond basic I-9 compliance might not be maintained over time or distributed evenly throughout the far reaches of some diffuse organizations. It is questionable whether or not ICE will tolerate these types of deviations in enforcement actions and uniformly allege that an IMAGE employer acted knowingly.

Little has been reported about the number of companies that have volunteered to participate in IMAGE. In one news account in late November of 2006, Carl Rusnok of ICE's Dallas-based Central Division refused to say how many businesses had signed up for the program or how many it hopes it will sign up because the agency does not release that information. [11] In another news story, also in November of 2006, ICE spokesman Dean Boyd would not identify how many employers had signed up, but stated ICE had been in conversations with employers and the agency hoped to announce the names of cooperating companies in the coming weeks or months. [12]

One North Carolina employer of note, Smithfield Foods, Inc., volunteered for the IMAGE program. In conducting its review, the employer uncovered Social Security Number mis-matches, issued letters to its affected employees, and then terminated about 50 workers for failing to clear up the problems within 14 days. [13] The next day the employer suffered a walk-out by about 1,000 employees in protest, in part due to these actions. [14] The employer negotiated to re-hire the workers and gave them 60 days to clear up the mismatched Social Security Numbers. [15]

While that move bought the company some time to work through those issues with its affected employees, all is still not well for Smithfield Foods. Under the IMAGE program, the employer may have to terminate these workers again for lacking work authorization. ICE will know if they do not do so. Regardless of what happens within the company or with ICE in terms of IMAGE, Smithfield Foods has also raised the ire of the anti-illegal immigration group, the Americans for Legal Immigration PAC. This group openly advocates that members of the general public contact ICE and encourage it to raid Smithfield Foods. [16] The basis for such a request is the press Smithfield Foods' labor relations issues have generated, specifically with regard to the re-hiring of the workers it terminated. [17]

As was the case with Tyson, Wal-Mart and is presently the case with Swift, sagas like these take some time to play out. Will Smithfield Foods be charged with criminal violations of the law? Will an immigration-based RICO suit be filed against the employer regardless of ICE's actions or inactions? One can only speculate if either will occur, but these possibilities remain on the table. Many rational employers will likely wait for the final chapters of the Smithfield Foods saga to be written in order to fully weigh the potential benefits of IMAGE participation.


There is little doubt that employers are skeptical of government enforcement actions dating back to the Tyson case. In the article Deputizing - And Then Prosecuting - America's Business In The Fight Against Illegal Immigration, [18] which details the Tyson case, the authors poignantly question an employer's ability to engage in "partnership discussions" with the government until it can: (1) reassure employers it will not play "gotcha," and (2) choose to first communicate with cooperative employers about alleged problems, rather than opening covert investigations to build criminal cases. Neither of these conditions appear to be met in ICE's most recent efforts to partner with businesses.

Employers have also closely observed how the government dealt with Swift leading up to the December 2006 raids and are continuing to watch how it will deal with the company going forward. Although it is unlikely ICE will equally share in Swift's projected $30 million dollar loss [19] (as is the case with most partnerships), the specter of criminal charges remains. In addition, Swift will incur costs in defending an immigration-related RICO suit filed just days after ICE's raids. [20] In either instance, the shroud of protection offered by the Basic Pilot Program, a cornerstone of the IMAGE program, will be put to the test. [21]

In sum, ICE's "Best Hiring Practices" and the IMAGE program represent efforts to impose a regulatory scheme on employers beyond the legislative intent of IRCA, the statutes or the associated regulations. In the absence of positive reforms, how many employers will answer ICE's calls for its latest brands of cooperative enforcement in the coming weeks or months (or ever)? No one knows for sure. If these efforts are being pursued as a mere guise of partnership talks, but result in criminal prosecutions of employers or legal actions by other parties, no one should expect a rush of volunteers.

As employers brave the new world of worksite enforcement, they should consider the outcomes other employers have experienced with voluntary, I-9 related government programs. From an employer's view, these prior efforts have turned out much like a grade school-level water and oil experiment. In the absence of options to employ those currently lacking work authorization, prudent employers should also wait and see how other employers fare in implementing the "Best Hiring Practices" and IMAGE. If meaningful, comprehensive immigration reforms are enacted in 2007, the dynamics between employers and ICE could dramatically improve and these types of programs could become more attractive.


1 U.S. Dept. of Homeland Security, DHS Highlights Best Practices for Maintaining Legal Workforces, Unveils New Industry Partnership to Help Businesses Make Good Hiring Decisions, July 26, 2006,

2 U.S. Immigration and Customs Enforcement, Best Hiring Practices,

3 U.S. Immigration and Customs Enforcement, ICE Mutual Agreement between Government and Employers,

4 Minutes of AILA ICE Liaison Meeting, July 27, 2005, Posted on AILA InfoNet at Doc. No. 05112265.

5 For further information about Social Security Administration "no-match" letters, see: p_faqid

6 For a general description of the Basic Pilot Program, see

7 U.S. Dept. of Homeland Security, DHS Highlights Best Practices for Maintaining Legal Workforces, Unveils New Industry Partnership to Help Businesses Make Good Hiring Decisions, July 26, 2006.

8 U.S. Immigration and Customs Enforcement, ICE Mutual Agreement between Government and Employers.

9 U.S. Dept. of Homeland Security, DHS Highlights Best Practices for Maintaining Legal Workforces, Unveils New Industry Partnership to Help Businesses Make Good Hiring Decisions, July 26, 2006.

10 Id.

11 Judy Gibbs Robinson, Businesses Help Screen for Illegal Applicants, (Nov. 28, 2006)

12 Michael Doyle, Slow Start for Worksite 'Carrot', (Nov. 23, 2006)

13 Al Greenwood, Meat Plant Follows Accord, (Dec. 16, 2006)

14 Associated Press, Smithfield Workers Walk Out in N.C., Akron Beacon Journal (Nov. 17, 2006)

15 Greenwood,

16 Americans for Legal Immigration PAC website forum, see:

17 Id.

18 Thomas C. Green and Ileana M. Ciobanu, Deputizing - And Then Prosecuting - America's Business In The Fight Against Illegal Immigration, 43 Am. Crim. L. Rev. 1203, 1218-19 (Summer 2006).

19 Christina Tatum, Swift Raids Slice $30 Million, Packer Says, Denver Post (Jan. 1, 2007)

20 Associated Press, Ex-workers Sue Raided Company Over Hiring (Dec. 18, 2006)

21 Article II, Section C, Paragraph 6 (5), of the Basic Pilot Program's Sample "Memorandum of Understanding" states: no person or entity participating in the Basic Pilot shall be civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system. See:, and click on "View MOU Sample."

About The Author

Tony Weigel is a Kansas City, Missouri-area lawyer and the principal of Weigel Law Office, LLC. He concentrates his practice in the areas of business-immigration law and employer compliance with immigration laws. He is a graduate of the University of Missouri-Kansas City and is a member of the American Immigration Lawyers Association. He be can contacted at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.