First-in-US Push to Hire Undocumented Students Tests Law’s Limit

California has been a leader in legislation benefiting undocumented residents, such as allowing them to obtain driver’s licenses. Now, the state’s higher education system is looking to be their largest employer by relying on an untested legal theory.

Roughly five months after agreeing to student demands for a new hiring policy covering undocumented immigrants, University of California regents are fast approaching a self-imposed deadline of Nov. 30 to issue a plan making the school system the first public institution to hire students and staff regardless of their legal immigration status. Activists say the public pressure on regents will grow in the coming weeks to meet their deadline and engage with immigrant students on the plan.

Jeffry Umaña Muñoz—a University of California, Los Angeles, senior and undocumented student organizer—and other students launched a campaign dubbed Opportunity for All last year, arguing that state agencies like the University of California aren’t restricted by federal law from hiring undocumented students or graduates, and that doing so would allow graduates to fulfill their potential.

The effort aims to address the challenges faced by undocumented students on the 10 University of California campuses in a world where immigration reform appears as distant as ever.

But the stakes are higher than that: If the regents follow through on commitments for a new hiring plan, advocates for the campaign—and legal scholars supporting the effort—believe that it would provide a template for other states to adopt similar policies. That’s in no small part because the nearly 230,000 faculty and staff employed at UC colleges and medical schools surpass the total number of workers employed by many states.

“This felt like something that was tangible and in reach, not something that has become almost impossible like immigration reform at the federal level,” Umaña Muñoz said in an interview after speaking at a UC Regents meeting in September. “This isn’t a panacea to all our issues but at least to issues of employment.”

Novel Legal View

By delivering on organizers’ demand for the new hiring policy, the University of California would be testing what was until now a common understanding of federal restrictions on hiring undocumented individuals.

The campaign, backed by arguments from a bevy of immigration legal scholars, argues that a 1986 law that prohibited the hiring of undocumented workers doesn’t apply to state government entities like public university systems. While that statute, known as the Immigration Reform and Control Act, granted amnesty to nearly 2.7 million undocumented immigrants, it also made it illegal for employers to knowingly recruit or hire undocumented workers.

But Ahilan Arulanantham, professor of practice at UCLA School of Law, had for years researched the limits of IRCA in restricting state agencies’ hiring policies. While at the American Civil Liberties Union, he and other advocates for immigrant rights prepared memos for President Joe Biden’s transition team outlining proposals they hoped the administration would adopt on a variety of subjects.

Ahilan Arulanantham, professor of practice at the UCLA School of Law.

Photographer: Andrew Kreighbaum/Bloomberg Law

Those ideas included, for example, administrative relief programs for “essential workers” similar to the Deferred Action for Childhood Arrivals program, which grants removal protections and work authorization to more than 600,000 undocumented young people.

The administration didn’t take up the vast majority of those ideas, and the proposal would be sitting on a shelf, Arulanantham said, had he not heard about employment challenges facing undocumented students after joining the UCLA Law Center for Immigration Law & Policy as co-director in 2021.

“I thought, ‘Oh, the problem you’re describing actually would be solved by this,’” Arulanantham said. He and other legal scholars who signed onto a legal memo last year arguing that under US Supreme Court precedent in multiple rulings, IRCA’s hiring prohibition isn’t binding on states if it doesn’t mention them explicitly.

The court has repeatedly found that Congress can’t regulate state governments without explicit language to that effect, and no such statement is to be found in IRCA, according to advocates of this novel approach. They include Hiroshi Motomura, the co-director of UCLA’s Center for Immigration Law and Policy, who helped spearhead the case to the Obama administration that it had the authority to enact DACA; Erwin Chemerinsky, dean of the law school at the University of California, Berkeley; and Stephen Yale-Loehr, an immigration law professor at Cornell University.

After the regents began moving forward with a hiring policy by forming a working group in May, organizers’ phones almost immediately began ringing with calls from activists at other California colleges, as well as from states such as New York, Texas, Washington, and Florida.

What form that hiring policy will take is unclear—the board of regents declined to make members of the committee available for interviews—but among the bureaucratic and legal questions the committee may tackle is how to verify potential undocumented workers’ identities in place of the Form I-9, a requirement for employers under the 1986 law. Advocates say that may not be so complicated since the university already verified student identities when they were admitted to campus.

Any plan the University of California puts forward is also likely to face legal challenges, although the venue is unclear. George Fishman, a senior fellow at the Center for Immigration Studies, which advocates for limits on immigration, wrote in an analysis after the launch of the Opportunity for All campaign that scholars “really seem to be pushing the envelope,” with their arguments. When Congress passed IRCA, it couldn’t have conceived of states seeking to hire unauthorized immigrants, he said.

“Hopefully, good sense will prevail, and the proposal to allow California public universities to hire illegal aliens will never advance beyond advocacy pieces,” wrote Fishman, a former Department of Homeland Security official during the Trump administration.

Republican-led states have been the fiercest legal opponents of DACA, suing repeatedly to overturn the protections. Those states wouldn’t have standing to sue over hiring policies in California, Arulanantham said, although it’s possible a challenge could be filed in state courts. But advocates are confident the legal backing for the policy could be defended in any court.

“We like our chances in front of neutral courts because we think we’re right,” he said.

Post-DACA Reality

The importance of the Opportunity for All campaign was underlined in September when a federal district court in Texas ruled for the second time that DACA was unlawful, putting the program’s long-term legal viability in greater doubt. The legal battle over DACA could land back in front of the Supreme Court as early as next year.

But most of the estimated 120,000 undocumented students who graduated from high school this year can’t expect to benefit from the program even if it’s found lawful by the high court. That’s because the program, which was originally envisioned as a short-term immigration fix, required that recipients arrive in the US by June 15, 2007. Most leaders behind Opportunity for All never had the chance to access DACA protections or employment authorization for this reason.

It’s unclear how many current students at University of California campuses would benefit from a policy allowing them to work for the school. But across all higher education institutions in the state, more than 44,000 students are undocumented yet not eligible for DACA benefits. Nationally, more than a quarter-million such students are enrolled in college, with roughly 120,000 more graduating from high school each year.

Although undocumented students at multiple University of California schools are involved in the campaign, UCLA’s campus in the Westside of Los Angeles has long been a hub for advocacy on issues affecting these students. The school’s proximity to family in San Diego and the activism of its undocumented population helped draw Karely Amaya Rios, a second-year public policy master’s student, to enroll and become immediately involved in organizing on campus.

The undocumented student population on campus includes students with a range of legal statuses, including DACA recipients with employment authorization, California residents who qualify for in-state tuition, and other undocumented students from outside of the state.

Karely Amaya Rios, a second-year public policy master’s student at UCLA and undocumented student organizer.

Photographer: Andrew Kreighbaum/Bloomberg Law

Until the recent litigation against DACA, the victory in securing the program had led many to become complacent, Amaya Rios said.

“With DACA in limbo in the courts we’ve seen more organizing because people are like, ‘Oh, shoot, these protections aren’t going to last forever,’” she said.

A Struggle to Pay for College

While efforts to pass even limited immigration measures have been stymied in Congress, states have enacted a number of laws reducing barriers to post-secondary education or work opportunities for undocumented populations.

For example, Massachusetts in August became the 24th state (along with the District of Columbia) to offer in-state college tuition to undocumented students. And Minnesota in September joined D.C. and 29 other states in allowing undocumented individuals to obtain driver’s licenses.

California has offered in-state tuition to undocumented students since 2000. Even with lower tuition rates than they’d face in some states, however, undocumented students in California can struggle to afford college costs without access to federal financial aid or employment authorization.

Abraham Cruz, an undocumented UCLA senior from Mexico, joined a worker cooperative in Los Angeles to pay for classes after his DACA status lapsed. The uncertainty over employment opportunities means that pursuing plans of graduate school, where less financial aid is available, is even more daunting.

“If the university opened up employment opportunities, I would not only be able to get a tuition remission for graduate school but would also be able to work as a research assistant,” he said.

Cruz and other student organizers lobbied in 2020 for the creation of fellowships for undocumented students without access to DACA. Although they secured those fellowships, the restrictions on the awards showed the need for broader solutions on campuses. Only a limited number of fellowships were available and caps on financial aid at the school system meant some recipients never saw any actual increase in financial awards.

Looming Deadline

Despite court rulings against DACA, protections for current recipients—including many who first applied over a decade ago—have remained in place so far in part because so many recipients and their employers have come to rely on the program. Supporters of the University of California hiring plan want to see the new program in place before the 2024 election cycle begins in earnest so that it’s harder to overturn if a Republican retakes the White House.

Although that plan is due for release in four weeks, the working group has yet to share details or engage directly with student organizers on what they hope to see included. That’s “really disheartening,” Umaña Muñoz said, because the regents can only learn about challenges faced by undocumented populations from students themselves.

“We know that policy must always be driven by the personal,” Umaña Muñoz told regents at their latest meeting on the UCLA campus in September. “Only we are the experts on ourselves at the university.”

In a statement, the University of California Office of the President said many undocumented students ineligible for DACA struggle “to access resources that can help them meet their basic needs, putting their prospects for graduation in peril.”

“The Regents’ working group will evaluate legal strategies and consider new avenues for creating equitable employment opportunities for all students, considering all relevant issues,” according to the statement. “The working group continues to receive direct student feedback as their work progresses to determine whether, how and when to implement next steps by the end of November.”

Activists showed up at public comment sessions at the regents’ September meeting while their classmates were busy moving in ahead of classes the following week. Student organizers aren’t letting up on their campaign to make sure a hiring plan is out before that November deadline and is as expansive as possible, they say.

“The fight isn’t over until the first undocumented student receives their first paycheck because of Opportunity for All. Then I can say, ‘Yes, we won,’” Amaya Rios said. “Until then, they have a lot of room to back out.”