California Can Revive The Immigrant Worker Protection Act By Challenging The Authority Of U.S. Citizenship And Immigration Services' 'FDNS' Enforcement Officers

Seyfarth Synopsis: In passing AB 450, the Immigrant Worker Protection Act (IWPA), California lawmakers tried to make it more difficult for federal immigration enforcement agents from accessing nonpublic areas of employer worksites and private employee records. The U.S. Justice Department filed a federal lawsuit against California attacking the IWPA as an unconstitutional interference with federal power over immigration. DOJ persuaded the Court to issue a preliminary injunction last month against parts of the IWPA that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records). Only one federal immigration agency routinely dispenses with the warrant or subpoena process. The Fraud Detection and National Security Directorate (FDNS) – a unit of U.S. Citizenship and Immigration Services (USCIS) – regularly shows up unannounced at employer facilities in California and elsewhere. Its agents present only a business card and demand the type of access prohibited under the IWPA.

As this post explains, the California Attorney General could and should try to persuade the Federal Court to lift the injunction against these IWPA provisions. Congress – when passing the Homeland Security Act of 2002 (HSA) – never authorized USCIS to create FDNS or to engage in civil and criminal immigration enforcement activities. Instead, the HSA not only prohibits USCIS from taking on the role of immigration enforcer, this law requires the agency to focus solely on adjudicating requests for immigration benefits such as work and visitor visas, asylum status, green cards and U.S. citizenship. If USCIS wants to verify information in requests for immigration benefits, the law gives it many other tools for this purpose. This post maintains that USCIS should stop sending its investigators to California worksites and stop disrupting businesses and workers in the state.

The State of California won and lost bigly last July 4th. But what if the state's biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized to conduct such investigations?

Three Clear Victories for California

In the wins column, as I recently reported, Federal Judge John A. Mendez in U.S. v. California refused to enjoin two California laws and part of another — all enacted by the state to inhibit cooperation with U.S. Attorney General Jeff Sessions and the Justice Department in their mission to apprehend and deport thousands of undocumented California residents.

Still in full force and effect are:

Senate Bill (SB) 54, which prohibits California law enforcement authorities from sharing with federal immigration authorities a wide variety of information on all but the most dangerous or felonious noncitizens in state custody (including the detainee's release date), and

AB 103 which directs the California Attorney General to review county, local, or private locked detention facilities housing noncitizens who are held within the state for civil violations of federal immigration laws, and report on the conditions of confinement at each facility, the due process and care accorded to detainees, and the circumstances leading to their apprehension and placement in the facility to the California legislature, Governor and the public by March 1, 2019.

Part of AB 450, the "Immigrant Worker Protection Act" (IWPA), also escaped the federal court's preliminary injunction, viz., those involving required employee-notification provisions. IWPA requires employers served with a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications):

(A) to disclose in writing, within 72 hours, to each current employee at the worksite and any labor union representing members there that U.S. Immigration & Customs Enforcement (ICE) will be conducting I-9 inspection, and

(B) to follow-up any affected employee or authorized union rep – also within 72 hours of receiving any subsequent immigration enforcement agent's notices – "of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records"

A Partial California Loss?

California appeared, however, to have suffered bigly with the Federal Court's preliminary injunction barring much of IWPA. The temporarily stricken portions reflect the state's attempt to make California workplaces mandatory safe zones, free of federal immigration intrusions, except where judicial warrants authorize entry to nonpublic worksite areas, or judicial or administrative subpoenas mandate access to employee records.

Unless the injunction is lifted, IWPA may no longer operate to bar employers in California from:

reverifying the employment eligibility of any current employee (unless required by federal law); and voluntarily (a) granting immigration enforcement agents entry to any non-public areas of a worksite (unless the agents present a judicial warrant), or (b) allowing the agents to access, review, or obtain any employee records (unless the agents present an NOI, an administrative or judicial subpoena, or a judicial warrant requiring compliance)(the no-voluntary-access provisions). Practical Effects on Employers in California. In real-world practice, however, IWPA's enjoined sections have had little impact on federal immigration enforcement activities – except for one immigration enforcement agency, FDNS, whose unlawful provenance and frequent misbehavior have been little reported.

IWPA's Reverification Ban. The ban on employer reverification of a current employee's right to work in the U.S. could never have operated as the state intended because the exception (unless required by federal law) always

Federal Law Requires Reverification. The only practical and lawful reasons why an employer might be required or motivated to reverify employment eligibility would be if:

the employee had time-limited work permission which was about to expire, and the employer needed to complete Section 3 of the I-9 requiring reverification in order to confirm that the individual continue to be authorized for employment, the employer decided to conduct a lawful, nondiscriminatory I-9 compliance audit, an employer had constructive knowledge of suspicious circumstances that must be investigated in order to see whether or not a current employee in fact was authorized to work, or, the employer lost, failed to fully complete, or never completed an I-9 for that worker. Reverifying the employment eligibility of current employees is a continuing legal obligation. This duty stems from Immigration and Nationality Act (INA) § 274A which imposes on employers the ongoing, affirmative obligation to refrain from continuing to employ a worker if the employer has "knowledge" (which by USCIS regulation may...