California Attorney General and Labor Commissioner Issue New Guidance on “Immigrant Worker Protection Act – AB 450”

February 20, 2018

On Friday, February 16th, the California State Attorney General’s office and Labor Commissioner issued long-awaited interpretive guidance on the Immigrant Worker Protection Act (“AB 450”), a new state law enacted by the California Assembly to provide foreign workers protection from increased immigration enforcement action by the Federal government. Among other restrictions, AB 450 prohibits employers from providing “immigration enforcement officers” access to non-public parts of their premises without a warrant, or access to immigration records without a warrant, subpoena or notice of inspection. The law also requires employers to give notice to their employees within 72 hours whenever a federal immigration agency issues a notice of inspection.  
 
While the requirements of AB 450 appear to be aimed narrowly at protecting undocumented workers from deportation and other enforcement actions by the Federal government, the prohibitions of the law are drafted broadly, and potentially affect employer compliance relating to the sponsorship of H-1Bs, and other temporary foreign workers. The Attorney General’s newly released FAQs have unfortunately failed to answer some of the important questions about the scope of the new law.  
 
We have provided a summary of the key provisions of AB 450 below, as well as recommended best practices for employers in the event of an immigration-related investigation, site visit or notice of inspection. You may find more comprehensive FAQs regarding the new law on our website here. This information will be updated as we receive additional guidance from the California state government.

 

Summary of AB 450 Provisions 

 

 Except as otherwise required by federal law, all public and private employers in California must adhere to the following rules and notice obligations, or they will be subject to civil action and fines by the State:

  • No Access to Nonpublic Areas at Place of Employment Without Judicial Warrant

Employers are prohibited from giving voluntary consent to an immigration enforcement agent to search any nonpublic areas at a place of employment, unless the agent presents a judicial warrant.

  • No Access to I-9s or Employee Records Without Subpoena, Judicial Warrant, or Notice of Inspection by a Federal Immigration Agency:

Employers are prohibited from giving voluntary consent to an immigration enforcement agent to access, review, or obtain employee records unless a subpoena or a judicial warrant, or a written Notice of Inspection has been previously issued.

  • Employers Must Provide Notice to Employees upon Receipt of a Notice of Inspection Issued by a Federal Immigration Agency:

Within a 72-hour period, employers are required to provide notice to all current employees of a written Notice of Inspection from a federal immigration agency. Employers are also required to provide notice of the inspection results to affected employees

  • No Re-verification of I-9s Unless Required by Federal Law:

Employers are prohibited from reverifying employment eligibility of a current employee at a time or manner not required by federal law (8 U.S.C. §1324a(b)).

 

AB 450 FAQs

 

What is a Notice of Inspection?
 
For purposes of AB 450, a Notice of Inspection, or “NOI,” is an advance notice issued by either the Department of Homeland Security (DHS) or U.S. Department of Labor (DOL) notifying an employer that it intends to inspect some or all of the employer’s I-9 employment verification records, or other employee records. NOIs are generally issued 3 days prior to the date of intended inspection.
 
What do I do if my company receives a NOI from the DHS or DOL?
 
If you receive a NOI issued by either the DHS or DOL, the employer should give notice to all employees within 72 hours, by using this form, as required by Section 4 of AB 450. Although it is unclear whether AB 450 applies to NOIs pertaining only to Labor Condition Application (LCA)-related compliance files, or other non-immigration-related files, until further guidance is issued from the State, we recommend assuming that AB 450 applies to such records, and provide employee notice accordingly. We strongly recommend that clients of Goeschl Law Corporation also contact our office immediately in the event a NOI is received.
 
What do I do in the event of an unannounced investigation by the Immigration and Customs Enforcement (ICE) or Department of Labor?
 
The employer must allow access to ICE officers if a subpoena or warrant is presented. If the immigration officer does not present a subpoena or warrant, and the employer grants the officer access to employee records, or non-public parts of its premises, the employee may be liable under AB 450. Note that an ICE investigation is not the same as a “site visit” conducted by the U.S. Citizenship and Immigration Services (USCIS) (see below).
 
What do I do if a member of the public asks to see our LCA Public Access Files?
 
A request by a member of the public to view LCA public compliance files, is not covered by AB 450. The employer is not required to give notice to other employees in the event of such request. 
 
What is a “site visit”?
 
The USCIS Fraud Detection and National Security Office (FDNS) makes unannounced site visits at employers that have sponsored foreign nationals for work authorized status (e.g. H-1B and L-1). The purpose of the site visit is to verify the information that  the employer provided on the sponsoring petition.
 
What do I do if a USCIS officer shows up for an unannounced “site visit”? 
 
While the Attorney General has not provided specific guidance, we believe that employers may voluntarily comply with a FDNS site visit without violating AB 450. Note that the employer consents in advance to site visits when filing the petition, and failure to provide information voluntarily through the site visit process could result in the petition being revoked. The employer should not, however, provide any employee records, or information about workers who are not sponsored by the employer. Additionally, the FDNS officer should obtain employee records relating to the sponsored foreign worker directly from that worker, with that worker's consent. The employer should also only allow the FDNS officer access to areas commonly used to meet with guests, and not grant access to parts of the worksite that are considered private, such as employees’ offices or cubicles, the lunch room, etc.

 

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