Sunday, March 8, 2020

New Mexico Opts Out of Undocumented Worker Ineligibility for Licenses to Work

Last week, New Mexico opted out of a federal statute that makes undocumented workers ineligible for State or local work licenses -- the licenses required by law to do certain jobs.

The federal statute, enacted in 1996 by Congress and President Clinton, makes many non-citizens ineligible for "any State or local public benefit," 8 U.S.C. § 1621(a), a term that covers, among other things, any "professional license, or commercial license provided by an agency of a State or local government," id. § 1621(c)(1)(A). This affects not only the undocumented workers who would otherwise qualify for a such license, but also all the people put at risk of harm or competitive disadvantage by unlicensed workers.

Yet, in that same legislation, Congress left States a way out:

A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

8 U.S.C. § 1621(d).

Since 1996, some State legislatures have passed laws to trigger the section 1621(d) opt-out for work licenses. E.g., Cal. Bus. & Prof. Code § 135.5; 20 Ill. Comp. Stat. 2105/2105-140; Ind. Code § 12-32-1-6.5(c). Some of those laws, however, cover only particular occupations or subsets of undocumented workers. E.g., Fla Stat. § 454.021(3); Neb. Rev. Stat. § 4-111. For compilations, see, e.g., Olivas (2017) and Williams (2019).

Last week, New Mexico joined this group by enacting a broad opt-out for work licenses:

A. It is the policy of this state that a person is eligible for occupational or professional licensure or certification for which that person is qualified, regardless of the person's citizenship or immigration status.

B. No administrative rule or agency procedure shall be adopted or enforced that conflicts with the policy stated in Subsection A of this section.

C. This section serves as the affirmation of eligibility in this state pursuant to 8 U.S.C. Section 1621(d) for persons not lawfully present in the United States to be licensed or certified.

SB137 (enacted 2020)

According to the legislative history, this legislation is compatible with New Mexico statutes requiring background checks for some license applicants, such as licenses for some teachers and early childhood educators. So long as the agency doesn't make an applicant's citizenship or immigration status a ground for denying a license, that agency can "allow consideration of other issues highlighted during a background check, particularly issues that pose a threat to students' safety." SB137/SJCS Bill Analysis (Feb. 13, 2020).

--- Sachin Pandya

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Please note New York rejected 8 U.S.C. 1621 as controlling and implemented changes in occupational licensing by regulation see Janet M. Calvo, Professional Licensing and Teacher Certification for Non-citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests,” 8 COLUM. J. RACE L. 33 (2018),

Posted by: Janet Calvo | Mar 10, 2020 5:20:46 AM

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