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Carl Shusterman's Immigration Update

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  1. IMMIGRANT WORKER PROTECTION ACT (IWPA) - A SIMPLE GUIDE FOR CALIFORNIA EMPLOYERS

    The California Immigrant Worker Protection Act also known as IWPA became effective on January 1, 2018.



    IWPA imposes the following restrictions on California employers:


    1. They are prohibited from giving federal immigration agents access to non-public areas of the workplace or employee records without a judicial warrant or subpoena;
    2. They are required to give employees and union representatives (if any) notification before and after I-9 inspections; and
    3. They cannot reverify the immigration eligibility of employees to continue working unless mandated by federal law.


    Access to Non-Public Areas of the Workplace or to Employee Records


    In order for a federal immigration agent to be able to access non-public areas of the employer’s workplace, the agent must present an warrant issued by a judge. An administrative warrant signed by an Department of Homeland Security (DHS) officer does not suffice. The IWPA law provides that an employer can not voluntarily permit a federal immigration agent to enter these areas without a warrant.
    IWPA also prohibits employers from sharing employee records with a federal immigration agent unless they first present a subpoena or a judicial warrant.

    However, the requirement that the agent present a subpoena or a judicial warrant is waived where the agent serves the employer with a Notice of Inspection (NOI) to review the employer’s I-9 forms and attached documents.


    Required Notifications Before and After I-9 Inspections


    Upon receiving a Notice of Inspection, an employer is required by IWPA to post a notice informing it’s employees (and their union representative, if any) of the NOI within 72 hours. The notice must be in the language or languages normally used to communicate employment-related matters. The posting notice must contain the following information:


    1. The name of the federal immigration agency conducting the inspection;
    2. The date that the NOI was received by the employer;
    3. The nature of the inspection to the extent known; and
    4. A copy of the NOI.


    The California Labor Commissioner is obligated to issue a standard posting notice by July 1, 2018. Until then, employers and their attorneys should create their own posting notices.


    Within 72 hours after receiving the results of the I-9 inspection, the employer must provide each “affected employee” (and their union representative, if any) with a copy of the written results and the obligations of the employer and the employee arising from the results of the inspection. An affected employee is one who lacks proper work authorization documents or whose documents have been found by the federal immigration agency to be deficient. This notice must be hand-delivered, or if this is not possible, delivered by mail.


    This notice must contain the follow information:


    1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;
    2. The time period for correcting any potential deficiencies identified by the immigration agency;
    3. The time and date of any meeting with the employer to correct any identified deficiencies; and
    4. Notice that the employee has the right to representation during any meeting scheduled with the employer.


    Reverifying Employment Eligibility


    IWPA prohibits employers from reverifying the employment eligibility of current employees at a time or manner not required by federal law. Employers are required to conduct reverification before an employee’s existing work authorization expires.

    This provision creates problems for employers who wish to conduct internal I-9 audits to rectify any deficiencies in their I-9s.


    Penalties for IWPA Violations


    IWPA violations can result in civil fines of up to $10,000.

    A violation of the reverification provision can lead to a penalty of up to $10,000.


    Failure to satisfy any of the other provisions can result in penalties ranging from $2,000 up to $5,000 for a 1st violation, and from $5,000 to $10,000 for any subsequent violations.


    IWPA Advice for Employers


    IWPA can prevent some California employers from becoming compliant with federal immigration laws.

    For the past 30+ years, we have advised employers to perform internal audits of their I-9 forms in order to comply with Federal immigration laws and to avoid huge fines for I-9 violations. However, IWPA penalizes California employers who audit and fix deficiencies in their I-9 forms. Now, many employers would well advised to sign up for the E-Verify program allow this will not cure any past mistakes in completing I-9 forms.


    Employers need to properly train their human resource staffs what to do in case of a visit by federal immigration agents. If an HR employee is unable to distinguish between an ICE agent and a person working for the FDNS or between an administrative and a judicial warrant, this could have disastrous consequences.


    In addition, HR staff should be trained in how and when to post notices when a Notice of Inspection is received and how to notify affected employees (and union representatives, if any) of the results of a federal I-9 audit. They should also be aware of when I-9 forms can be reverified and when it is a violation of IWPA to do so.


    Related Pages




    Updated 03-12-2018 at 12:04 PM by CShusterman

  2. California Immigration Laws Challenged in Federal Lawsuit

    On March 6, 2018, the US Department of Justice filed a lawsuit in Federal Court challenging 3 California immigration laws.


    The lawsuit contends that the laws “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law” and that they “impede consultation and communication between federal and state law enforcement officials.”


    California Governor Jerry Brown responded calling the lawsuit a “political stunt”.


    The California immigration laws which are being challenged are as follows:

    The California Immigrant Worker Protection Act (AB 450) became effective on January 1, 2018. It prohibits businesses from allowing federal immigration agents to gain access to employee records without a court order or subpoena. However, if federal agents have a Notice of Inspection, they can gain access to I-9 forms within 72 hours. California employers are required to provide notice to employees about any Notice of Inspection as well as the results of I-9 audits by the Federal government. Employers can be fined up to $10,000 for violating this law.


    The California Values Act (SB 54) which also went into effect on January 1, 2018 limits state and local agencies from sharing information with federal officers about criminals or suspects unless they have been convicted of serious crimes.

    The Detention Review Act (AB 103) which was enacted as part of the California state budget prohibits new contracts for immigration detention in California and gives the state attorney general the authority to monitor all state immigration detention centers.

    US Department of Justice Challenges California Immigration Laws





    California Immigrant Worker Protection Act (AB 450)





    California Values Act (SB 54)





    Detention Review Act (AB 103)





    We will keep you informed as the lawsuit makes it’s way through the Federal Court system
    .

    Updated 03-09-2018 at 05:04 PM by CShusterman

  3. Immigration: While Washington Waffles, California Acts!

    http://shusterman.com/images/jerry-brown-california-seal-570x3871.jpg
    In October, California Governor Jerry Brown signed 9 immigration bills into law. This stands in marked contrast to the U.S. House of Representatives which has yet to pass a Comprehensive Immigration Reform bill since the Senate passed one on a bipartisan basis last June.

    One bill that Governor Brown signed will allow undocumented immigrants to apply for drivers licenses. This legislation was strongly supported by the law enforcement community. At present, many of the undocumented fear that if they are involved in a traffic accident or if they are pulled over for a moving violation, they will be turned over to ICE and deported. Starting on January 1, 2015, they will be able to apply for Drivers Licenses. Law enforcement officials predict the number of hit and run accidents will decline, and that more of the undocumented will be able to purchase insurance.

    Governor Brown stated: “When a million people without their documents drive legally and with respect in the state of California, the rest of this country will have to stand up and take notice. No longer are undocumented people in the shadows.”

    It should be noted that the new driver licenses will contain markings indicating that the holder is undocumented. Thus, they cannot be used to qualify for governmental benefits. However, undocumented drivers will no longer have to worry about their cars being impounded or being turned over to ICE for minor traffic offenses.

    A number of other states have also enacted similar law this year.

    In addition, Governor Brown signed the Trust Act which prohibits local enforcement officials from turning people arrested for minor violations over to the Federal Government for deportation. Many states have balked at the so-called Secure Communities program which is supposed to allow ICE to place immigration holds on those convicted of serious offenses. Unfortunately, many persons charged with minor offenses have been turned over to ICE and deported, even though the charges against them were dropped. Interesting enough, former DHS Security Janet Napolitano urged the Governor to sign this legislation.

    It is time to recognize that most of the people that we call the “undocumented” are good people who have come to the United States to find work and support their families. Most of our agricultural industry as well as our hotels, restaurants and many other businesses would close down immediately if the government suddenly deported all of those lacking the proper paperwork. The current administration has deported more people during the past 5 years than were deported in the previous 50 years, but an enforcement-only approach will not solve the problem.

    Throughout most of U.S. history, there were no quotas of the number of people who could immigrate to our country. These days, the number of people on waiting lists to legalize their status number in the millions, and many of them live and work in the U.S.

    I am a former INS prosecutor, and am certainly not an advocate of “open borders”, but the present situation calls for immediate action. Deport those who are security risks or have serious criminal records. Let the rest pay fines, file income tax returns, learn English and wait in line for green cards. Provide a pathway to citizenship. It’s time to be realistic and I am proud that California is leading the way.

    As Governor Brown stated when he signed the new drivers license bill into law, “Hopefully, it will send a message to Washington that immigration reform is long past due.”

    Amen!

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 12:15 PM by CShusterman

  4. Driver’s Licenses for the Undocumented in California

    http://shusterman.com/images/california-drivers-license.jpg
    On September 13, the California State Legislature passed a bill which would enable undocumented immigrants to apply for California State Driver’s Licenses. The State Senate passed the bill, AB60, by a 28-8 vote while the Assembly’s vote was 55-19. Governor Jerry Brown has indicated that he will sign the bill into law.

    The driver’s licenses issued to the undocumented would allow them to drive legally, but not to apply for other benefits. There will be a notation on the license stating that the document “does not establish eligibility for employment or for public benefit”. The licenses will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers License).

    Like other applicants, the undocumented will have to pass both a written and a driving test, and comply with applicable rules issued by the Department of Motor Vehicles. These drivers would then be eligible to purchase automobile insurance.

    “These licenses will include a special watermark on the front and language on the back that makes it clear this license is for driving only and not identification,” said Kim Raney, who is the President of the California Police Chiefs Association. “TSA and federal officials and law enforcement will all be aware that these grant driving privileges only and aren’t confirmed identification.”

    Nine other states have enacted laws allowing undocumented immigrants to apply for state driver’s licenses, six this year. Prior to 1993, a person’s immigration status was not a criterion for obtaining a California Driver’s License. Approximately 2.6 million undocumented persons reside in California.
    Although some persons criticized this measure as a “quasi-amnesty”, it was strongly endorsed by the California Police Chiefs Association, the insurance industry and Los Angeles Police Chief Charlie Beck. The police chiefs believe that the measure will increase traffic safety and diminish the number of hit and run accidents.

    A statement issued by Governor Brown stated that “This bill will enable millions of people to get to work safely and legally…Hopefully, it will send a message to Washington that immigration reform is long past due.”

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 12:15 PM by CShusterman

  5. California Snake Oil


    http://nakasec.org/blog/wp-content/files/2010/11/102280-oldprotest-02.jpg
    Here in my home state, the budget is over $25 billion in the red. One group is trying to find someone to blame, but not the Governor nor the legislature who got us into this mess. It's far easier to pick on a group with little or no political power.

    This group consists of "undocumented workers" or "illegal aliens", take your pick, or to be more precise, their U.S. citizen children.

    The plan is to put a proposition on the California ballot which, if passed, would cut off welfare payments to these children. Will this solve the budget crisis?* Hardly, since the cuts would be less than 4% of the budget deficit. Would such a move be challenged in court? Certainly. There is no getting around the fact that under the 14th amendment to the Constitution, these children are U.S. citizens and cannot have their legal rights abridged, no matter what the status of their parents. Will it make a lot of voters enraged against "Mexicans" and "wetbacks"? But of course...

    History tends to repeat itself, and this is no exception. Back in 1994, a bunch of zealots put anti-immigrant Proposition 187 on the ballot. The proposition would have cut health, welfare and educational benefits for illegals and, in some cases, for their U.S. citizen children. Sound familiar?

    I wrote an op-ed in the Los Angeles Times about Proposition 187, warning that the ballot initiative was clearly unconstitutional. The proponents of 187 dubbed it "SOS", short for "Save Our State". My article was entitled "Snake Oil Salesmen".

    Proposition 187 was passed by an overwhelming majority of voters. Republican Governor Pete Wilson endorsed the proposition and went on to win the election.

    Did Proposition 187 accomplish its stated goals? Hardly. The Courts declared the proposition unconstitutional. What's more, the campaign jolted the state's large Hispanic population into action. Millions of immigrants naturalized as American citizens and registered to vote. The Republican presence in the California State Legislature shrunk to about one-third.

    Hopefully, the latest attempt to demonize immigrants from Mexico and their U.S. citizen children will fail at the ballot box. In any case, it will be a colossal waste of time and money since U.S. citizens cannot legally be deprived of benefits due to the immigration status of their parents.

    One can only hope that the comprehensive immigration reform bill supported by the Obama Administration will pass Congress and be signed into law this fall. Let's get every worker in this country on the tax rolls, and handle this matter in an intelligent fashion.

    We link to the latest legislative proposals from our "Immigration Legislation" page at

    http://shusterman.com/toc-leg.html#3

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 04:10 PM by CShusterman

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