U.S. Immigration Customs and Enforcement (ICE) announced that it has signed up 25 Puerto Rican companies to its IMAGE system, increasing the total number of companies enrolled in its program to approximately 225 employers. This represents a 12.5% increase in enrollment for a federal program that had not previously gained much traction with US employers. By way of background, IMAGE is a Federal program, established in 2006, that is best described as E-VerifyPlus, with ICE giving employers a two-year audit pass as long as they pass a minimum compliance threshold, including having ICE forensic auditors review company historical I-9 records.

So, what is going on in Puerto Rico to cause 25 companies to enroll on the same day? For now we have no answers, but it could be part of a government initiative to mitigate fines against the affected employers pursuant to an active I-9 investigation. One thing is for sure, the local USCIS office has been successful in its IMAGE recruiting drive. In the meantime, let’s address the benefits IMAGE gives employers:

• Public recognition of the employer’s IMAGE certification.

• Avoidance of lawsuits and other legal actions resulting from unauthorized employment.

• Brand name protection.

• Fine mitigation.

• A stable workforce.

• No Form I-9 inspection for a minimum of two years.

• Training and guidance provided by ICE on proper hiring procedures and fraudulent document awareness.

Despite these benefits, many employers that consider IMAGE enrollment end up preferring to use a combination of I-9s and E-Verify as a suitable compliance threshold. Some of the negatives for employers that are considering IMAGE are:

• The burden of conducting a comprehensive self-audit of the company’s historical I-9 records to see whether it will fall below the 50% threshold set by ICE for companies to avoid being fined. Companies are not required to do an audit of their own records; however, many companies considering the process want assurances that they will not incur fines when they open their doors to ICE forensic auditors and will have outside counsel conduct an audit of their historic I-9 records.

• The increased level of resources a company has to assign to securing IMAGE certification compared with on boarding using an electronic I-9 and E-Verify compliance solution.

The decision to enroll in IMAGE is complex, requiring an assessment of an employer’s particular needs and its existing compliance program. Employers should seek guidance from their outside immigration counsel.