immigration

Private employers received good news this month when a federal court temporarily stopped the state of California from enforcing most of a new law that restricts an employer’s ability to cooperate with officers who enforce federal immigration laws. This new California law is known as Assembly Bill 450 or the “Immigrant Worker Protection Act”.  It became effective in January 2018.  As we explained in an earlier post, this new law prohibits an employer in California from voluntarily (1) allowing an “immigration enforcement agent” to access nonpublic areas of the employer’s facilities; (2) allowing the agent to access, review, or obtain employee records; and (3) reverifying a Form I-9, Employment Eligibility Verification, unless otherwise required by federal law.

The U.S. government responded to the new state law by suing the state of California and asking the federal court to strike down the law. The federal government asserted that the state was interfering with the regulation of immigration matters and enforcement. The lawsuit sought relief from the state law only as to private employers in California, not for public employers.

Private Employers in California now Free to Cooperate with Federal Immigration Enforcement Agents: For at least a temporary period, the federal court has ordered California to stop restricting private employers from cooperating with federal agents. California also may not enforce state law restrictions on when an employer may complete an I-9 reverification. In issuing this temporary order, the court recognized that the California law has placed employers in a “precarious situation” when interacting with federal agents. In many circumstances, it is in the employer’s interest to cooperate with federal agents who are investigating immigration issues or taking worksite enforcement actions. This cooperation can result in limiting the scope of the federal enforcement action and in shortening its duration. The federal fines and/or penalties also may be significantly reduced. Yet, under the new California law, the employer will be subject to substantial fines if it cooperates – from $2,000 to $10,000 per state law violation. As the court stated, the California law “impermissibly discriminates” against employers who voluntarily cooperate with federal immigration enforcement agents. California’s attempt to regulate I-9 reverifications also conflicts with federal law.

In addition to these concerns, the California law is troublesome because it is unclear. The law does not define who is an “immigration enforcement agent” – the person with whom the employer may not cooperate. Officers in Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), and U.S. Customs and Border Protection (CBP) are likely in this group. Yet it is unclear whether officers who make immigration benefit decisions and other types of officers are “immigration enforcement agents.” For example, employers may file petitions with U.S. Citizenship and Immigration Services (USCIS) to seek authorization to hire foreign nationals as employees. In doing so, the employers promise to cooperate with USCIS in later investigations, including to produce records and allow access to worksites before or after favorable decisions in the immigration cases. The Fraud Detection and National Security (FDNS) officers of USCIS make random, unannounced site visits to these employers. Refusing to allow FDNS officers access to the worksite or to certain employee records could result in USCIS’s reopening of the immigration case, commencing a broader investigation, and/or revoking the employment authorization. For many reasons, the temporary injunction is therefore welcome relief to the untenable circumstances facing employers caught between federal and state laws.

Notice Requirement in New Law Still in Effect: The federal court allowed the new California notice requirement to remain. California employers now must inform employees within 72 hours after the employer receives notice that immigration enforcement agents will conduct an I-9 inspection or other investigation. The employer also must inform each affected employee of the results of the I-9 inspection or other government audit within 72 hours of receiving those results. An affected employee is one who is identified as lacking employment authorization or whose employment authorization documents have deficiencies. The federal government has strongly objected that the notice provision undermines its investigations. The court, however, has allowed the notice provision to stand for now.

Litigation Continues: This dispute over California’s effort to regulate the interactions of private employers with federal immigration enforcement agents is far from over. Whoever loses at the upcoming trial is likely to appeal to a higher level court. For now, the federal trial court has given private employers much needed relief from the “precarious situation” created by this new state law.