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The space between a rock and a hard place may have just widened for employers in California.
Employers won’t be hit with hefty fines for cooperating with federal immigration enforcement agents without a subpoena or warrant, following a federal judge’s decision to temporarily block part of a state law under which companies could be fined. Also blocked is a separate provision preventing employers from reverifying the employment authorization of their workforce if not required by law.
At the same time, Judge John A. Mendez of the U.S. District Court for the Eastern District of California shot down most of the federal government’s challenge to California’s so-called “sanctuary” laws protecting undocumented immigrants. After refusing to block most of the laws, he issued an order dismissing the bulk of the federal government’s case.
California’s Immigrant Worker Protection Act (A.B. 450) “created a lot of confusion” for employers trying to comply with both state and federal authorities, Angelo Paparelli of Seyfarth Shaw in Los Angeles told Bloomberg Law. With the court’s order, “I think we are back to square one,” and you “can take your immigration lawyer off speed dial,” he said.
The order “will provide a little breathing room” for employers, David Fullmer of Wolfsdorf Rosenthal in Santa Monica, Calif., told Bloombeg Law. But “the issue needs to be resolved permanently.”
A representative for the California attorney general’s office didn’t respond to Bloomberg Law’s request for comment.
“California’s political leadership clearly intended to obstruct federal immigration authorities in their state,” Devin O’Malley, a spokesman for the federal Justice Department, said in a statement provided to Bloomberg Law. “The preliminary injunction of AB 450 is a major victory for private employers in California who are no longer prevented from cooperating with legitimate enforcement of our nation’s immigration laws.”
“While we are disappointed that California’s other laws designed to protect criminal aliens were not yet halted, the Justice Department will continue to seek out and fight unjust policies that threaten public safety,” he said.
A.B. 450, which went into effect Jan. 1, was intended to protect immigrant workers from federal work-site enforcement efforts. Assemblymember David Chiu (D), who introduced the legislation, said last October that the measure was especially important in light of the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program.
The Obama-era program provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children.
California’s law also requires employers to notify affected workers of an impending Immigration and Customs Enforcement audit of employment authorization paperwork, as well as the results of that audit. That provision is still in effect.
A.B. 450 was “well-intentioned” as a way to “set the employees’ minds at ease” as the federal government ramps up immigration enforcement, Fullmer said.
But the law put many employers in a bind: choosing between complying with federal immigration enforcement and getting fined by the state, or snubbing the federal government and risking either federal fines or the potential loss of a valued foreign worker.
Part of the issue with the state law is confusion over whether its ban on complying with federal immigration enforcement agents applies just to Immigration and Customs Enforcement or also to U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate, Paparelli said.
The FDNS conducts site visits of employers that sponsor workers for certain types of visas to guard against fraud.
The “standard process,” Paparelli said, “is to get access to the workplace of the individual” whose visa petition was the basis for the visit. The idea is to ensure the foreign worker’s job location, job duties, and other information match up with what the employer listed on the petition, he said.
“That is where there is a clear conflict with A.B. 450,” Paparelli said. If an employer won’t allow the FDNS agent to view the employee’s work space without a warrant, or the employee’s paperwork without a subpoena, the agency will revoke the petition, he said. If the employer allows an FDNS agent in, it could face fines from the state.
“I’ve been recommending that they try to bridge the gap by complying to the extent that they can,” Fullmer said. If allowing an FDNS officer into a private work area would violate A.B. 450, the employer instead could ask him or her to interview the employee elsewhere, such as a lawyer’s office, he said.
A.B. 450 created a “conundrum for California employers,” Chad Blocker of Fragomen, Del Rey, Bernsen & Loewy in Los Angeles told Bloomberg Law July 13. But he said it’s unlikely the state law applies to FDNS site visits.
In fact, some of Blocker’s clients have complied with FDNS site visits since A.B. 450 went into effect, and they haven’t faced repercussions from the state, he said.
Still, the court order provides relief to employers trying to comply with state law and ICE, Blocker said.
Many employers have been “prioritizing compliance with federal law,” Blocker said. They reason that there may be some fines from the state, but are “willing to take that risk.”
Some employers are finding that the provision of A.B. 450 that bars them from reverifying their workers’ employment authorization “hasn’t been an issue,” Blocker said.
“I don’t know that A.B. 450 would prohibit an employer from conducting a self-audit” of its I-9 employment verification forms, he said. Rather, the state law was designed to prevent employers from asking immigrant workers for their documents when not required to do so, Blocker said.
But for Fullmer, blocking the reverification provision is a big deal. A violation of A.B. 450’s reverification provision can cost $10,000 per employee, Fullmer said. “That’s a lot,” especially for companies with hundreds or thousands of employees.
“Employers are scared because they see all the I-9 enforcement that’s happening” and they want to “see where they are” in terms of compliance with federal immigration law, he told Bloomberg Law.
The injunction gives employers “a little leeway to clean up their act” and get their I-9s in order, Fullmer said. But they should do so with counsel so they don’t have a “knee-jerk reaction” and wind up illegally discriminating against immigrant workers, he said.
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