2019-05

Enacting Professional and Occupational Testing and Licensing for Dreamers

Sponsored by Sen. Omar Aquino (IL)

Unanimously ratified by the Caucus on December 5, 2019

WHEREAS, NHCSL adopted Resolution 2017-07, Encouraging the Continuity of the DACA and DAPA Programs, “to ensure that the immigrant and Hispanic communities have the opportunity to continue being an integral part of society, without being discriminated;”[1] and,

WHEREAS, NHCSL also adopted Resolution 2017-18, Regarding the Impact of the Deferred Action for Childhood Arrivals Program on Educational Attainment and Community Stability, stressing, among other things, that 17% of DACAmented Americans are pursuing an advanced degree,[2] a prerequisite for many licensed professions; and,

WHEREAS, NHCSL further adopted Resolution 2018-08, EMERGENCY RESOLUTION: End the Uncertainty and Create a Pathway to Citizenship for Dreamers Now, underscoring “that this is not only a Hispanic issue, but impacts Dreamers of all backgrounds who are, above all, American;”[3] and,

WHEREAS, many DACAmented students, and other non-DACAmented Dreamers, have fulfilled their academic graduation requirements, even for post-graduate professions, only to find that they could not practice their chosen profession or occupation;[4] and,

WHEREAS, as a general rule, Federal law[5] forbids DACA recipients, DREAMers, and undocumented immigrants in general, from receiving state benefits, including professional licenses, but delegates on state legislatures the authority to allow, via a law “which affirmatively provides for such eligibility,”[6] otherwise qualified DACA recipients, DREAMers and undocumented immigrants in general to apply for professional- or occupational- licensing testing and obtain professional or occupational licenses;[7] and,

WHEREAS, despite this, many states have failed to pass the required laws on the subject; and,

WHEREAS, only twelve states—Arkansas, California, Florida, Illinois, Indiana, Minnesota, Nebraska, Nevada, South Dakota, Utah, West Virginia and Wyoming—have enacted laws, to some degree, providing licenses for certain populations, such as Deferred Action for Childhood Arrivals (DACA) recipients, legal immigrants and/or unauthorized immigrants, and sometimes only for selected professions or limited circumstances;[8] and,

WHEREAS, the National Association of Hispanic Nurses brought the plight of their Dreamer student members to our attention, after helping them achieve passage of laws granting them the right to take their licensing tests in Arkansas, Illinois and Indiana; and,

WHEREAS, while this issue goes beyond nursing, increasing the diversity of the nursing workforce is essential as it leads to strengthening the development of culturally and linguistically competent healthcare, which is linked to increased patient satisfaction, improved communication, and greater healthcare access.

THEREFORE, BE IT RESOLVED, that the National Hispanic Caucus of State Legislators recognizes the work of the National Association of Hispanic Nurses in bringing the Dreamer professional licensing issue to the attention of policymakers and national organizations, underscoring that it is a proud testament to NAHN’s commitment to the health of our communities and the welfare of its members; and,

BE IT FURTHER RESOLVED, that the National Hispanic Caucus of State Legislators recognizes the importance of Dreamers and undocumented immigrants having access to professional or occupational licensing exams and professional or occupational licenses in order to put into practice their degrees or training, and calls on state legislatures to enact, without delay, legislation to allow Dreamers and other undocumented migrants, as appropriate, the right to sit for licensing tests in any state-regulated profession or occupation, and, having completed all requisites, obtain professional or occupational licenses.

THE NHCSL EXECUTIVE COMMITTEE UNANIMOUSLY APPROVED THIS RESOLUTION ON MAY 6, 2019 AT ITS SPRING MEETING IN WASHINGTON, DC.

THE NATIONAL HISPANIC CAUCUS OF STATE LEGISLATORS UNANIMOUSLY RATIFIED THIS RESOLUTION ON DECEMBER 5, 2019, AT THE ANNUAL MEETING IN SAN JUAN, PR.

[1] NHCSL Resolution 2017-07, Encouraging the Continuity of the DACA and DAPA Programs, available at https://nhcsl.org/resources/resolutions/2017/2017-7/

[2] NHCSL Resolution 2017-18, Regarding the Impact of the Deferred Action for Childhood Arrivals Program on Educational Attainment and Community Stability, available at https://nhcsl.org/resources/resolutions/2017/2017-18/.

[3] NHCSL Resolution 2018-08, EMERGENCY RESOLUTION: End the Uncertainty and Create a Pathway to Citizenship for Dreamers Now, available at https://nhcsl.org/resources/resolutions/2018/2018-8/

[4] See for example Chaunie Brusie, DACA Policy Bans Nursing Student From Taking The NCLEX (Nurse.org News, Nov. 4, 2018) (discussing the case of Rosa, an Arkansas nursing school student whose plight drove the adoption of Act 837, supra note 6), available at https://nurse.org/articles/DACA-nursing-student-banned-from-NCLEX-RN-license/

[5] 8 U.S. Code § 1621.

[6] 8 U.S. Code § 1621(d) (the state law must have been adopted after August 22, 1996).

[7] For an example of a law see Illinois Public Act 100-1078 (Effective Jan. 1, 2019) (“Sec. 2105-140. Licensure; immigration status. No person shall be denied a license, certificate, limited permit, or registration issued by the Department solely based on his or her citizenship status or immigration status. The General Assembly finds and declares that this Section is a State law within the meaning of subsection (d) of Section 1621 of Title 8 of the United States Code. Nothing in this Section shall affect the requirements to obtain a professional license that are not directly related to citizenship status or immigration status….”, among other related provisions), available at http://ilga.gov/legislation/publicacts/fulltext.asp?Name=100-1078.

[8] For the extent of their effect see, National Conference of State Legislatures (NCSL), Professional and Occupational Licenses for Immigrants (Jan. 17, 2017) (listing ten of the states having enacted legislation up to that date) (note that Illinois has updated its law since then), available at http://www.ncsl.org/research/immigration/professional-and-occupational-licenses-for-immigrants.aspx. The Illinois updated law, S.B. 3109, was sponsored by NHCSL members Sens. Iris Martinez, Omar Aquino, Cristina Castro, Martin Sandoval, and Antonio “Tony” Muñoz, and Reps. Elizabeth Hernandez and Jaime Andrade, among others.

See also, Indiana Public Law 172 (March 21, 2018) (Provides that “an individual who is authorized by the federal government to work in the United States is eligible for a professional or occupational license issued by a state agency or political subdivision if the individual meets all the requirements, other than the requirement under 8 USC 1621(a), to obtain or renew the professional or occupational license.”), available at https://iga.in.gov/legislative/2018/bills/senate/419.

And see, Arkansas Act 837 of April 10, 2019 (HB 1552) (allowing DACAmented nurses to receive nursing licenses), available at http://www.arkleg.state.ar.us/assembly/2019/2019R/Pages/BillInformation.aspx?measureno=HB1552.

The Oklahoma Board of Nursing, allows applicants with “approved deferred status” (see http://nursing.ok.gov/rnlpnnclex07.pdf) but the waiver is not mentioned in the statute (https://nursing.ok.gov/actwp18.pdf) as required by 8 U.S. Code § 1621(d).

Vermont has ordered its Office of Professional Regulation to “examine means of reducing unnecessary barriers to professional licensure for qualified immigrants to Vermont from foreign countries,” but has not adopted legislation to that effect yet.) See Vermont Act 144 of May 21,2018, available at https://legislature.vermont.gov/bill/status/2018/H.684.

Nevada, New Jersey, New York and South Carolina have legislation pending. The Nevada bill, A.B.275, is sponsored by NHCSL members Sens. Mo Denis and Yvanna Cancela, and Assemblymembers Edgar Flores and Selena Torres, and co-sponsored by NHCSL members Assemblymembers Richard Carrillo, Sandra Juaregui, Susan Martinez, and Dina Neal, among others. The New Jersey Senate bill, S.2708, is sponsored by NHCSL East Region Chair Sen. Nellie Pou. The New York Senate bill, S.1704, is sponsored by NHCSL member Sen. Luis R. Sepúlveda.