Can I Work if I’m an Undocumented Immigrant?  The State of California Could Say Yes…

Can I Work if I’m an Undocumented Immigrant? The State of California Could Say Yes…

Of all the challenges faced by young undocumented immigrants in the United States, the inability to work legally goes to the heart of their exclusion from meaningful participation in society. It’s no wonder then that undocumented students have led the campaign to keep DACA alive and expand its benefits to all undocumented youth, so that our communities can benefit from their hard work and spectacular talent. In support of these courageous students, academics and legal experts have joined the fight. Now a groundbreaking legal analysis led by UCLA Law School has determined that federal restrictions against hiring undocumented immigrants should not apply to state and local government employers, including state public universities. Based on this analysis, student organizers are campaigning the public UC system to open up hiring to undocumented students who are otherwise ineligible to work legally in the U.S.

As with many momentous social issues, the problem of immigrant work authorization comes down to a little known legal technicality. In short, is the federal government authorized to tell state and local governments how to hire and compensate their employees? In the area of immigrant employment authorization, the conventional wisdom since 1986, with passage of the Immigration Reform and Control Act (IRCA) has been yes, that state and local government must follow the same rules as private employers in validating employment authorization for immigrants and non-citizens.

However, California may be ready to turn the conventional wisdom on immigrant work authorization on its head.

As reported by Miriam Jordan in the New York Times:

The political and legal turmoil over [DACA] that since 2012 has shielded many of them from deportation... has left thousands of the so-called Dreamers — immigrants whose plight has won sympathy at times from Democrats and Republicans alike — in legal limbo. Federal law makes it illegal to hire undocumented immigrants, and, under the law, many of these young immigrants will graduate from college to a life of under-the-table jobs as nannies and construction workers.

Now, a coalition of undocumented student leaders and some of the nation’s top legal scholars is proposing that California, a state that has served as an incubator for progressive policies on immigration, begin employing undocumented students at the 10 University of California campuses.

Until now, most legal experts took for granted that the employment authorization requirements under the 1986 Immigration Reform and Control Act (IRCA) applied to all employers, whether private or state or local government. In concrete terms, federal law generally requires all employers to make sure all workers are eligible for employment, either as U.S. citizens, permanent residents, or under some other legally defined status (e.g., H1-b, refugee, DACA), and obligates employers to complete an I-9 form for workers to prove up their work eligibility.

However, as argued by Professor Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA, the federal government may not restrict the states’ authority to hire employees, absent clear authorization by law. The question of whether the federal government can regulate goes back to such cases as National League of Cities v. Usery, 426 U.S. 833 (1976), where the Supreme Court struck down federally mandated wage and hour protections for state employees as a violation of the states’ 10th Amendment sovereign authority to regulate their own public servants. On the issue of state authority to hire and employ non-citizens, Prof. Arulanantham asserts that the federal government has not been authorized to force the states to follow federal immigration policy on work authorization.

For many immigrant students and their families, the situation is dire. Thousands of undocumented students without DACA, although eligible to attend school, are not eligible to work and support themselves to pay tuition. If DACA is terminated, as the federal courts now threaten to do, thousands more students will be added to those who can’t either put their education to use or support their families. However, if the UC system adopts Prof. Arulanantham’s argument, these deserving students could work on campus, serve as research assistants, and even work as graduate instructors. By extension then, not just the UC System, but the State of California and our localities would be empowered to recruit the most qualified workers, regardless of work authorization status, to serve the people of California. As we confront numerous crises on education, income inequality, the environment, and homelessness, the people of Californian desperately need an ever more capable and hard-working cadre of public servants to meet these critical challenges. Waking up to the possibility that such a talented group could lead us into the future would be great news indeed, not just for undocumented immigrants, but for all of California.


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