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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. My Candidacy for AILA Board of Governors

    by , 03-12-2018 at 11:22 AM (Matthew Kolken on Deportation And Removal)
    I have been selected by the Nominating Committee as a candidate for the office of Director of the American Immigration Lawyers Association's Board of Governors. For those who don't know me, I maintain a full service immigration law practice, handling cases in all areas of immigration and nationality law with a focus on deportation defense before Immigration Courts throughout the United States, appellate practice before the Board of Immigration Appeals, and the U.S. Courts of Appeals. I have been a member of AILA since 1997.

    During the last three years I have served as the EOIR liaison for the Upstate New York Chapter, and was awarded the chapter's Equal Justice Under the Law Peter J. Murrett III Pro Bono Award in recognition for community service. In addition, I was awarded the New York Law Journal's Lawyer Who Leads by Example award for 2015 for providing pro bono representation to refugee children before the immigration court. In 2017, I received the Erie County Bar Association's Pro Bono Award in recognition and appreciation for pro bono legal services performed in immigration matters before the Court.

    I am honored to already have had my candidacy endorsed by Charles Kuck, Doug Stump, Margaret D. Stock, Amy Maldonado, Danielle Rizzo, and Daniel Thomann, Rosanna Berardi, Mechelle Zarou, Isabel Barbarin, Daniel Joyce, Rita Georges and Michael Serotte, Tracy A. Powell and Steve Brent, Jeff Zimskin, Ramon Rivera, Lindsay Curcio, James D Eiss, Barbara C. Brenner, Jennifer Behm, Kurt Saccone, Siana J. McLean, Nina F. Juncewicz, Michael Marszalkowski, Joseph C. Grasmick, and Russell W. Roberts.

    If elected my focus will be on the improvement and expansion of member benefits, transparency of governance, and the limitation of advocacy messaging to nonpartisan analysis of the immigration law.

    I believe that AILA's main focus should be on serving the members of the organization, and it has a fiduciary responsibility to avoid advocating for policies that will harm our members financially.

    I also believe that AILA's advocacy efforts have been both ineffective and detrimental to the reputation of the organization. Moving forward, I will fight to limit AILA’s official messaging to strict legal analysis of immigration law and procedure, addressing deprivations of due process, and administrative deficiencies.

    It goes without saying that I have been one of AILA's harshest critics, but I am willing to make my voice heard from the inside in an effort to make our association better.

    Thank you for your kind consideration.

    Updated 03-16-2018 at 08:32 AM by MKolken

  3. Lawsuit Filed vs. DHS for Separating Parents, Children in Asylum Detention, as Ignoring Human Rights Brings US Closer to Dictatorship. Roger Algase

    Just over a year ago, on March 4, 2017, I warned about DHS plans to separate asylum-seeking children from their mothers, and I compared it to the actions of a tyrant in ancient Greek drama.

    http://blogs.ilw.com/entry.php?9750

    Now, a class lawsuit vs. DHS by the ACLU alleging that separating mothers and children seeking asylum by detaining often at long distances from each other with minimal phone communication only is now Trump administration policy in practice shows that my warning was not without foundation.

    The most widely publicized example of this abuse has involved a Congolese mother and her 7-year old daughter who were detained separately at facilities 2,000 miles from each other while seeking asylum, until the mother (but not the child) was suddenly released - obviously in response to public outcry over this example of inhumanity.

    However, according to a report in The Guardian, one advocacy group, the Women's Refugee Commission, has identified 429 cases of family separation in detention under the Trump administration, ranging from toddlers to young teenagers.

    As I pointed out in my comment last year, incarcerating parents separately from their young children is not just a matter of drama involving ancient Greek tyrants (such as the one I mentioned in Euripides' Medea - who, according to that play, orders a mother and her children to be deported together, not separately).

    It is a practice typical of modern dictators as well. Therefore, while one should perhaps not be surprised that the administration of a president who cannot tolerate the idea of darker skinned immigrants from "shithole" countries in Africa or the Western Hemisphere coming to the US with any kind of visa or authorization would engage in the barbaric practice of locking up parents separately from their young children, all Americans should be concerned of this latest example of America's relentless march toward dictatorship based on Donald Trump's agenda of making our immigration system whiter.

    For more details on the ACLU's lawsuit, see:

    https://www.theguardian.com/us-news/...uit-aclu-trump

    Roger Algase
    Attorney at Law
    algaselex@gmail.com




    Updated 03-12-2018 at 11:19 AM by ImmigrationLawBlogs

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