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A coalition of undocumented students last year asked the University of California (UC) to disregard INA Section 1324a, the federal law which prohibits employing undocumented foreign students. That provision was established 37 years ago by the Immigration Reform and Control Act of 1986 (IRCA).
According to immigration and constitutional law scholars at the UCLA law school’s Center for Immigration Law and Policy, the employer sanctions in INA Section 1324a do not apply to state universities. The Center contends that under governing Supreme Court precedents, if a federal law does not mention the states explicitly, it does not bind state entities; and nothing in that provision expressly binds or even mentions state entities.
On May 18, 2023, UC announced that it is planning to accept the Center’s advice and hire foreign students who do not have work authorization. (For a comprehensive summary and analysis of the Center’s arguments, see immigration law expert George Fishman’s article “California Dreamin’”)
The analysis of the scholars gives little, if any, weight to congressional intent. As I will explain further below, Congress established employer sanctions to reduce illegal immigration by weakening the job magnet that attracts it. The scholars’ interpretation will reduce the effect of employer sanctions and create a new job magnet that I will refer to as the “state employment magnet,” which is likely to result in a substantial increase in illegal immigration.
California has a history of defying federal immigration enforcement measures. It is a sanctuary state, which means that it limits cooperation with federal immigration authorities and offers political support and protections to migrants who are in the U.S. illegally.
This time, however, it may have gone too far.
According to UC regents, the plight of students without legal status has intensified since 2017, when the Trump administration ended an Obama-era program known as Deferred Action for Childhood Arrivals (DACA), which had granted work permits and protection from deportation to certain undocumented migrants who were brought to the United States as children. Consequently, undocumented students are no longer able to get work authorization.
In 2023, approximately 100,000 immigrant youths graduated from high school without legal status — including about 27,000 in California. About 44,000 undocumented foreign students attend California colleges, and about 4,000 of them attend UC. UC has ten campuses with a total enrollment of 294,309 students.
The UC regents have agreed to find a pathway to hire foreign students who lack legal status and work permits, and they have established a working group to develop a plan for how and when to start hiring them. They issued a statement saying that the university is committed to ensuring that all of its students, regardless of their immigration status, can pursue a world-class UC education, which should include enriching student employment opportunities.
They have a sympathetic case for helping undocumented foreign students who were brought here when they were young children, but that is not the circumstance of every foreign student. And the Center’s legal justification doesn’t just apply to students. It applies to every undocumented migrant in the country. The state employment magnet will be an attraction to every undocumented migrant who thinks he or she can find a job as a state employee in the U.S.
Congress established a Select Commission on Immigration and Refugee Policy in 1978, which addressed highly controversial issues that later became central to the debate that occurred when IRCA was moving through the legislative process. In its report to Congress, the Commission recommended fining employers who knowingly hire illegal migrants and establishing a more reliable mechanism to identify persons authorized to work.
According to the Commission, as long as the possibility of employment exists, people from other countries who are seeking economic opportunities will continue to take great risks to come to the U.S., and curbing illegal immigration will be extremely difficult.
The Commission’s recommendation led to the bargain that made the passage of IRCA possible — create an employer sanctions program to curtail future illegal immigration in return for legalization programs.
President Ronald Reagan referred to this bargain in the statement he made when he signed the bill into law. He said that IRCA has three essential components: “employer sanctions, other measures to increase enforcement of the immigration laws, and legalization.”
He emphasized, however, that, “The employer sanctions program is the keystone and major element. It will remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens here.”
If UC goes forward with its plan to employ undocumented foreign students, the state employment magnet it will create almost certainly will cause a substantial increase in illegal border crossings into the country.
Ironically, this could hurt the students UC is trying to help by making a DREAM Act to grant them lawful status even less likely than it already is.
Republicans such as Sen. Chuck Grassley want illegal immigration to be brought under control before a DREAM Act is considered. He said, “If we want to provide legal status for Dreamers, we must secure our border, so that we don’t find ourselves in the same situation again, 20 or 30 years from now.”
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: nolanhillop-eds.blogspot.com
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