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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. Employers Beware: The I-9 Dragon Grows a Second Head!


    http://shusterman.com/images/carl.jpg On March 8, the USCIS published the 7th edition of a two-page Employment Eligibility (I-9) form. The passage of the Immigration Reform and Control Act of 1986 made the form mandatory for all new hires. The new form may be used by employers now and becomes mandatory on May 8, 2013.

    Until now, the I-9 has always been a one-page form. However, it is probably the most complex and misunderstood one-page form ever issued by the Federal Government.

    Employers should take care to avoid mistakes when completing the form since even simple paperwork fines can range from $110 to $1,100 per violation and several companies have had to pay multimillion dollar fines. Some employers have been subject to criminal penalties including jail time for knowingly hiring undocumented workers and keeping them on the payroll.

    The aim of the new I-9 form is laudable, to clear up many of the ambiguities that have existed in the past: How should persons with temporary visas complete Section One? What should employers do in Section Two if they are presented with a receipt instead of a listed document? How does one perform the reverification process in Section Three?

    Besides, its new two-page format (three including a page entitled "Lists of Acceptable Documents"), the instructions are now 5-6 pages in length. In addition, the USCIS has updated its Handbook for Employers. The new Handbook is 70 pages long.


    Changes in the Form

    On the new form, page one must be completed by the new hire while page two is solely the employer's responsibility.

    Section One now gives new hires the option of providing their telephone numbers and e-mail addresses. The Department of Homeland Security (DHS) plans to use this information to contact an employee whose information on the I-9 does not match DHS or Social Security records. If workers choose not to complete these fields, they should write "N/A".

    Certain foreign nationals who are not lawful permanent residents of the U.S. may be required to list the country of issuance of their passports and their passport numbers on the I-9. The rules regarding this subject are complicated, and employers will want to read both the instructions and the handbook carefully, and consult with their attorneys where necessary. In general, the passport information is required if the person's I-94 Arrival-Departure document was issued by the Customs and Border Protection (CBP) agency when they arrived in the U.S. However, if they extended or changed their status or their employer and their I-94 was issued by the USCIS, they should write "N/A" in these fields.


    It's Complicated

    Since these are new requirements, it is not yet clear how the government will classify errors. Errors which are classified as "procedural" means the government will not impose fines on the employer. The government will, however, fine the employer if they classify the error as "substantive".

    When completing I-9 forms, both the old and the new, employers are faced with a formidable task. Many of the fields on the forms are far more complex than they appear. Below are a few examples:

    In Section One, how many employers or new hires know what a "noncitizen national" is?Almost zero. The instructions to the new form define this term as follows: "Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad." Unlike the old instructions, the USCIS has, at last, defined the term. However, this definition is about as clear as mud. The use of the words "certain" and "former" make this definition ambiguous. Are new hires and employers expected to know the definition of "former Trust Territory or the Pacific Islands"? They can always look this up on Wikipedia and learn about "Chuuk, Yap, Kosrae and Pohnpei". Seriously!

    Few employers know that new hires need not list their Social Security numbers in Section One. Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory. The new instructions make this clear.

    Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules. Ironically, these efforts are often to the employer's detriment. The Justice Department's Office of Special Counsel has fined numerous employers, some over $100,000, for demanding too many documents from new hires and for discrimination.

    In the world of I-9s, things that may seem obvious often are not. For example, if a new hire is a Conditional Permanent Resident, his permanent residence expires after two years. Shouldn't the employer reverify his employment authorization before it expires? Simple logic says "yes", but the instructions say "no". If the employer does so, it is violating the law.

    And once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers. So, in its "Handbook for Employers: Guidance for Completing Form I-9", the USCIS must simply resort to making things up.

    Virtually every time the agency issues new policy guidance regarding employment authorization, it is forced to invent a method for employers to incorporate this guidance into their I-9 compliance procedures. For example, consider the "cap-gap". F-1 students, upon graduation, can apply to work using "Optional Practical Training" (OPT), usually for one year. However, students typically graduate and obtain their OPT in June. If an employer wants to sponsor them for an H-1B temporary professional working visas, this must be done in April, yet their H-1B employment authorization does not begin until October 1st. So, what are students supposed to do between the time that their OPT expires in June and when their H-1B starts in October? Quit their jobs and return to their country? This is impractical both for the student and for the employer. So a few years back, the government issued a "cap-gap" memo that permits students employed using OPT to continue to work throughout the summer as long as their employers had submitted H-1B petitions and applications for a change of status on their behalf, and they were either pending or approved. Great idea on the USCIS' part, but how is an employer supposed update a student's I-9 in such circumstances? Obviously, the employer cannot rely on either the law or the regulations as a guide since the "cap-gap" rule is solely a creature of an agency memo. So, as usual, the USCIS simply made something up, and employers can find the answer on page 21 of the Handbook.

    This is so true with regard to some programs which provide work permits like Temporary Protected Status (TPS). The USCIS often waits until the last minute and simply publishes an item in the Federal Register, automatically extending TPS and work permits. I often wonder how many Human Resource Directors start each day with a cup of coffee and a copy of the Federal Register with its wide array of new and fascinating Federal regulations. Virtually zero, I suppose. Yet, when it comes to sponsoring employees for work visas and green cards, the Federal Government is very exacting in requiring employers to place advertisements in newspapers "of general circulation" and posting job notices for a certain number of business days in specified locations. When comparing how immigration rules impact Federal agencies and private employers, what is good for the goose is not necessarily good for the gander.


    Conclusion

    If you are an employer with hundreds or thousands of employees, you probably have an experienced Human Resources Manager. You send him or her to I-9 seminars and make sure that he/she carefully reads the new I-9 form, instructions, the USCIS Handbook, etc. Also, you probably have an attorney who is well-versed in I-9 issues, and you consult him/her on a regular basis. You perform regular internal audits to make sure that you are fully compliant with I-9 rules.

    It is also a good idea to bookmark USCIS' I-9 Central and our Employer Compliance Guide, both of which are free online resources.

    However, if you are a small business and you have neither the time nor the personnel to do any of this, it's probably time for you to say a little prayer or sign up for E-Verify, or perhaps, both.

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

    Updated 12-02-2013 at 01:08 PM by CShusterman

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