Employers: When the government comes knocking, will you be prepared?
Under Section 274A of the Immigration and Nationality Act (“INA”) (8 U.S.C. §1324a), an employer must complete a Form I-9, Employment Eligibility Verification, to document each employee’s (citizen or non citizen) identity and employment authorization to work in the United States. Employers may also participate in the E-Verify program, which electronically checks Form I-9 data against the databases of U.S. Citizenship and Immigration Services and Social Security Administration. Form I-9 records must be retained by an employer for either three years after the date of hire or one year after the date employment ended, whichever is later.
Immigration and Customs Enforcement (“ICE”) enforces Section 274A of the INA by issuing Notices of Inspection (“NOI”) to employers, which require employers to make their Form I-9 records available for inspection within three days of issuance of the NOI. A violation of Section 274A could result in administrative sanctions of $539 – $21,563 for hiring violations, to debarment (prohibits federal contracts for 1-3 years), to criminal prosecution. An employer who has established that it has complied in good faith has an affirmative defense that the employer has not committed violation with respect to the hiring of employees. (INA §274A(a)(3)).
In California, Labor Code §1171.5(a) provides that “[a]ll protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed” in California. This means that all employees, regardless of immigration status, may avail themselves to the remedies provided for under the Labor Code.
On January 1, 2018, California passed the Immigrant Worker Protection Act (“AB 450”). AB 450 prohibits an employer from voluntarily consenting to a request from ICE to enter private work areas or to access company records. An employer, however, must comply with any judicial warrants issued by a court or subpoenas issued by federal immigration authorities, and NOIs seeking to inspect an employer’s Form I-9 records. AB 450 adds a notice requirement where the employer must timely notify employees and any union representatives of the NOI and post-inspection results. The monetary sanctions imposed under AB 450 range from $2,000 – $10,000. (Gov’t Code §§7285.1, 7285.2(a); Labor Code §90.2).
In recent months, there has been a heavy ICE presence in California, which includes raids, issuance of NOIs, and sanctions. Some attribute this presence to the passing of AB 450 and other laws, and the U.S. Department of Justice has filed a lawsuit against California. Until a court issues a ruling, however, employers must ensure they are in compliance with the law, and the first place to start is with a review of employment records.
Marie E. Wood is an immigration, business, and transactional law attorney with Reid & Hellyer, APC, Co-Chair of the Immigration Section of the North County Bar Association, and 2017 President of the Southwest Riverside County Bar Association. She may be reached at (951) 695-8700, Reid & Hellyer, APC, 41955 Fourth Street, Suite 210, Temecula, California 92590
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