Monday, September 16, 2013

Immigration Roundup: A California Law License for Undocumented Immigrants?

by Laura D. Francis

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The question of whether states can admit undocumented immigrants to the bar once again rises to the fore, with the California Supreme Court considering the case of Sergio Garcia, an undocumented immigrant who worked his way through law school and passed the bar exam.

The state justices heard arguments Sept. 4 about whether to grant a law license to Garcia, who otherwise meets all qualifications for admission to the bar. But as in the case of Jose Godinez-Samperio currently pending in Florida, the applicant must overcome the federal Justice Department's opposition to his license, based on 8 U.S.C. §1621.

The federal law bars state agencies from granting professional licenses and other benefits to undocumented immigrants. The arguments before the California Supreme Court therefore centered around the definition of a public benefit and whether a state court is considered an "agency" under Section 1621.

Because the statute also prohibits state entities that use federal appropriations from granting benefits to undocumented immigrants, arguments also concerned whether lawyers--who are overseen by an entity that is fully funded by private funds in the form of bar dues and are licensed by the court rather than a state agency--are different from other licensed professionals.

The Obama administration's deferred action for childhood arrivals program didn't come into play in Garcia's case because he's too old to qualify for the program. Godinez-Samperio, on the other hand, has been granted DACA status and work authorization, but the DOJ argued in the Florida case that it doesn't matter. Work authorization doesn't make an undocumented immigrant eligible for a professional license, the agency argued in an amicus brief filed with that court.

Regardless of the California court's ultimate decision, state lawmakers may have a workaround. Section 1621(d) of the federal law allows states to enact laws overriding the prohibition on licenses—and such a bill (A.B. 1024) passed the California Legislature Sept. 12, the last day of the legislative session. Gov. Jerry Brown (D) has until Oct. 13 to sign or veto the measure.

A.B. 1024, which had already passed the legislature with different language, was amended Sept. 6 by leaders of the California Latino Legislative Caucus. As it now reads, the bill would authorize the state's supreme court to admit an applicant "who is not lawfully present in the United States" as a lawyer once he or she is certified as fulfilling admission requirements.

If the legislation is signed into law, California would become the first state to admit people to the bar regardless of immigration status.

In Other News:

• As of Sept. 9, the E-Verify electronic employment eligibility verification system now produces a "further action notice" when it returns a tentative nonconfirmation, a document that must be printed out, given to the employee and signed by both employee and employer. The notice provides instructions on how to contest a TNC with either the Social Security Administration or the Department of Homeland Security. E-Verify also now produces a referral confirmation when the employee does intend to correct the mismatch, giving the deadline for doing so.

• A complaint against western carnival company Butler Amusements claims that it fails to pay minimum wage and overtime compensation to employees on H-2B low-skilled, nonagricultural guestworker visas. But the company's attorney hotly disputes the claims, arguing that—even if it weren't exempt from the Fair Labor Standards Act's minimum wage and overtime provisions—Butler Amusements treats its workers well, and most return year after year.

• A Sept. 11 report from the National Conference of State Legislatures says state lawmakers have passed more immigration bills and resolutions in the first half of 2013 than in all of 2012. In a separate report, the National Immigration Law Center said Sept. 4 that most of those laws deal with immigrant workers' rights and integration, as opposed to the enforcement-style legislation characteristic of a few years ago.

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