This California Bill Would Allow Colleges To Defy Federal Rules Around Hiring Undocumented Student Workers

By: Alex Trent | Published: May 20, 2024

Democrats in the California Assembly are crafting a bill that if passed would allow public California colleges and universities to hire undocumented workers, even though it is prohibited by federal law.

The bill comes in response to a University of California decision in January that barred some of their undocumented students from having jobs on campus.

Students Fighting

Since UC’s Board of Regents decision to not hire undocumented students, activists have been increasing demands for a right to work. “I’m out here fighting for the right to be given the opportunity to apply to a job on campus. It’s Not Fair.” said UCLA graduate student Karely Amaya Rios in April. 

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“I fear that all of you do not understand how disappointing and gut-wrenching it feels to be denied my humanity and my right to access the same opportunities as my peers,” said Fatima Zeferino, an undocumented Cal State Long Beach Student.

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Assembly Bill 2586

David Alvarez, a Democrat state assemblymember, worked with students in the wake of UC’s decision to draft a bill that would compel public colleges and universities to allow students the right to work regardless of immigration status.

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The bill that was created from this effort is called Assembly Bill 2586, which Alvarez authored along with 13 other Democrat co-authors.

Compelling Colleges

The bill would prevent affected colleges from being able to disqualify a student for employment positions for not having federal work authorization in many circumstances.

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“This bill would prohibit the University of California, California State University, or California Community Colleges from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied,” says AB 2586.

Legal Argument

The bill’s summary lays out an untested legal argument that may allow branches of the state government to ignore federal rules about hiring undocumented noncitizens.

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“This bill would provide that, for its purposes, The University of California, the California State University, and the California Community Colleges are required to treat a specified prohibition in federal law on hiring undocumented noncitizens as inapplicable because that provision does not apply to any branch of state government,” the bill says.

Support for the Legal Argument

Although the legal argument in the bill is untested and state laws are generally superseded by federal ones, it has the support of several legal scholars.

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A letter from UCLA signed by law scholars and other academics in 2022 supported such a proposal.

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Legal Grounding

The letter from the UCLA Center for Immigration Law and Policy laid out the core rationale for the legal standing of hiring undocumented students.

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“The federal prohibition on hiring undocumented persons as a general matter is codified in the 1986 Immigration Reform and Control Act, or IRCA, in particular 8 U.S.C. § 1324a. Under governing U.S. Supreme Court precedents, if a federal law does not mention the states explicitly, that federal law does not bind state government entities. Nothing in 8 U.S.C. § 1324a expressly binds or even mentions state government entities,” the letter states.

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Ending Discrimination

When the bill was introduced in February, the UCLA School of Law put out a press release in support of it.

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“This bill will put an end to the separate-but-equal educational system that still operates in California’s university systems. As AB 2586 recognizes, the University of California, California State University, and California Community Colleges have the legal authority to hire any of their students, regardless of immigration status,” said faculty co-director Ahilan Arulanantham.

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DACA and Undocumented Students

One may be wondering why there are so many undocumented students in the university system. The current landscape is a result of a federal government program called Deferred Action for Childhood Arrivals (DACA) created under Obama in 2012.

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This program postponed deportation actions for children and minors, prioritizing resources for deporting criminally convicted undocumented people instead. According to the American Immigration Council, three out of four undocumented students came to the United States at a young age.

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End of DACA

The children protected under DACA exist in a sort of legal limbo in terms of their immigration status. While able to enjoy many of the privileges of living in the country, they are not fully naturalized citizens.

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This protection became more complicated for some after the federal government stopped accepting new applications under Trump in 2017. Now new undocumented students can no longer get work permits under the program and are unable to hold the same types of jobs as their legal student peers can.

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Moral Grounding

In an interview with Calmatters, Alvarez felt in addition to having proper legal standing, he is empowered to make a move on the state level because of a failure by the federal government to solve this issue.

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“We wouldn’t have to do this if the federal government actually did their job and passed immigration reform,” Alvarez told Calmatters.

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Difficulty For Undocumented Students

Students who don’t have proper federal work authorization due to their immigration status have a harder time finding work while trying to afford higher education.

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They often have to find jobs that will pay them under the table, or work as independent contractors. Alvarez estimates that if the bill passes, it would benefit some 60,000 undocumented students.

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