CJRL Calvo F17-corrected.pdf PROFESSIONAL LICENSING AND TEACHER CERTIFICATION FOR NON-CITIZENS: FEDERALISM, EQUAL PROTECTION AND A STATE’S SOCIO- ECONOMIC INTERESTS Janet M. Calvo1 Some states have recently addressed the integration of their non-citizen populations and their socioeconomic needs by expanding the eligibility of professional licensing to non- citizens. Changes made in 2016 in the two states with the largest immigrant populations, California and New York, were extensive and comprehensive. California removed immigration status requirements for licensing through legislation that covered all occupations regulated by the California Department of Consumer Affairs. The New York Board of Regents and Commissioner of Education expanded the categories of non-citizens eligible for professional licensing and teaching certification through administrative regulations, including all non-citizens permanently residing in the state under color of law. The changes in these two states required consideration of state sovereignty and equal protection. California treated all state applicants equally by removing any citizenship or immigration status requirements. New York determined that its state sovereignty allowed the state-designated agency to set licensing criteria for non- citizens despite a federal statute that purported only to allow 1 Janet M. Calvo is a Professor of Law at CUNY School of Law. Some of this Article reflects collaboration with the Center on Latino and Latina Rights and Equality (CLORE), Professor Natalie Gomez-Velez of CUNY School of Law, Jose Perez of LatinoJustice PRLDEF, Annie Wang of AALDEF, and Steven Choi of the New York Immigration Coalition, with whom the author worked to advocate for a change in the New York Regulations. This Article was written with the research assistance of CUNY School of Law students Bianca Granados, Cheryl Walker, Lourdes Cajamarca, Lauren DiMartino, Marcella Marucci, Nathalie Varela, and Nealraj Bhushan, and with the assistance of Maggie Ruperto of the CUNY School of Law staff. Professors Natalie Gomez-Velez, Ruthann Robson, Rick Rossein, and Stephen Loffredo provided helpful insights. 34 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 such licensing through state legislation. Both states concluded that an expansion of the eligibility of non-citizens for licensed professions allowed them to maximize the benefits of their in-state tuition policies and provided economic and social advantages for their communities. I. INTRODUCTION ................................................................ 35 II. CALIFORNIA’S LEGISLATIVE APPROACH .......................... 39 A. The California Legislation ...................................... 39 B. The California System of Professional Licensing and Teacher Certification ......................................................... 40 C. Professions Covered by the Legislation .................. 44 D. History of the Legislation and Positions in Favor and Opposed ....................................................................... 45 III. NEW YORK’S REGULATORY APPROACH ........................ 48 A. The New York Regulations ..................................... 48 B. The New York System of Professional Licensing and Teacher Certification ......................................................... 49 C. Professions Covered by the Regulations ................. 50 D. Regulatory History .................................................. 53 E. The Non-Citizen Categories Eligible for Licensing and Certification ................................................................ 55 1. Deferred Action for Childhood Arrivals (“DACA”) 56 2. Permanently Residing Under Color of Law (“PRUCOL”) .................................................................... 61 3. Non-citizen Categories Designated Under Federal Law 64 IV. FEDERALISM AND EQUAL PROTECTION ....................... 64 A. Federalism ............................................................... 65 B. Equal Protection ...................................................... 74 No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 35 V. COMMENTS FROM THE NEW YORK REGULATORY PROCESS 83 A. Comments in Support .............................................. 84 B. Comments in Opposition ......................................... 88 C. Comments Urging No State Restrictions Based in Non-Citizen Category......................................................... 90 VI. INSIGHTS FROM CALIFORNIA’S AND NEW YORK’S APPROACHES ........................................................................... 93 VII. CONCLUSION ................................................................ 98 VIII. APPENDIX 1–CALIFORNIA LICENSING AND TEACHER CERTIFICATION ............................................. 100 IX. APPENDIX 2–N.Y. EDUC. LAW AND DEPARTMENT OF EDUCATION APPLICATIONS FOR PROFESSIONAL LICENSES FOR NON-CITIZENS ...................................... 115 I. INTRODUCTION Recently, some states have allowed non-citizens in various categories to obtain professional licensing.2 Most of the states’ recent changes affect particular professions or particular categories of non-citizens, but the 2016 changes in New York and California were extensive and comprehensive. This is significant because they are the two states with the 2 Professional Licenses for Immigrants, NAT’L CONF. ST. LEGISLATURES (Jan. 17, 2017), http://www.ncsl.org/research/immigration/professional-and-occupational- licenses-for-immigrants.aspx (reporting changes in New York, California, Florida, Illinois, Minnesota, Michigan, Nebraska, Nevada, South Dakota, Utah, West Virginia and Wyoming). 36 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 largest immigrant populations. 3 California addressed the issue through legislation that covered all occupations regulated by the California Department of Consumer Affairs.4 The New York Board of Regents and Commissioner of Education addressed the issue through administrative regulations that apply to the professions and teacher certifications regulated by the New York Department of Education.5 The changes in these two states involved confrontation with the legal issues of state sovereignty and equal protection, and an assessment of the value of the economic and social contributions of their non-citizen populations. This Article describes the issues resolved by these two states as useful information to address the most effective ways to recognize and integrate non-citizen populations and to meet states’ economic and social needs for qualified professionals. While affecting all states, the issue of non-citizens’ licensing is of particular import in the states that afford in-state tuition to non-citizens for higher education,6 since these states have a particular interest in gaining the benefits of that state-supported education.7 3 U.S. Immigrant Population by State and County, MIGRATION POL’Y INST., http://www.migrationpolicy.org/programs/data-hub/charts/us- immigrant-population-state-and-county (last visited Oct. 21, 2017). The Migration Policy Institute indicates California as the state with the largest immigrant population with New York as second and Texas as third. Id. The Pew Research Center states that Texas is tied with New York as the state with the second largest immigrant population. Renee Stepler, Texas Immigrant Population Now Rivals New York’s in Size, PEW RES. CTR. (Apr. 21, 2016), http://www.pewresearch.org/fact-tank/2016/04/21/texas- immigrant-population-now-rivals-new-yorks-in-size/. However, New York’s immigrant population is more diverse than either the California or Texas populations. Id. 4 CAL. BUS. & PROF. CODE § 135.5(b) (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 5 N.Y. COMP. CODES R. & REGS. tit. 8 § 59.4 (2017); N.Y. COMP. CODES R. & REGS. tit. 8 § 80-1.3 (2017). 6 See generally Table: Laws & Policies Improving Access to Higher Education for Immigrants, NAT’L IMMIGR. L. CTR., https://www.nilc.org/wp- content/uploads/2017/04/table-access-to-ed-toolkit-2017-04.pdf (last No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 37 Professor Michael Olivas’ forthcoming article points to a need for thoughtful consideration of these issues. After presenting and analyzing national research on business and occupational licensing for non-citizens, particularly the undocumented and those with Deferred Action for Childhood Arrivals (“DACA”), he concludes that the developments in this area are complex, confusing, ineffective, and in great need of improvement.8 The relevant legal issues need to be sufficiently considered.9 The socio-economic considerations are also important as they affect states’ and localities’ integration of their non-citizen populations and non-citizens’ participation in their communities’ economic and social progress. updated Apr. 2017) (listing laws and policies of states allowing students who meet certain criteria, regardless of immigration status, to pay in-state tuition); Undocumented Student Tuition: Overview, NAT’L CONF. ST. LEGISLATURES (Oct. 29, 2015), http://www.ncsl.org/research/education/undocumented-student-tuition- overview.aspx (providing background on states with in-state tuition rates for undocumented students). 7 For discussions of issues underlying in-state tuition and higher education aid for non-citizens, see generally Stephen L. Nelson et al., Administrative DREAM Acts and Piecemeal Policymaking: Examining State Higher Education Governing Board Policies Regarding In- State Tuition for Undocumented Immigrant Students, 28 GEO. IMMIGR. L.J. 555 (2014); Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students, 21 WM. & MARY BILL RTS. J. 463 (2012); Michael A. Olivas, IIRIRA, The DREAM Act, and Undocumented College Student Residency, 30 J.C. & U.L. 435 (2004). 8 See Michael A. Olivas, Within You Without You: Undocumented Lawyers, DACA, and Occupational Licensing, 52 VAL. L. REV. (forthcoming 2017) (manuscript at 3, 48), https://ssrn.com/abstract=2997713. 9 The legal issues discussed below focus on state sovereignty and equal protection. See Jennesa Calvo-Friedman, The Uncertain Terrain of State Occupational Licensing Laws for Noncitizens: A Preemption Analysis, 102 GEO. L.J. 1597 (2014), for an analysis that demonstrates how preemption bars states from limiting the licensing of non-citizens with federal employment authorization. 38 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 The object of this Article is to examine how these underlying issues were addressed in the two states that took a comprehensive approach. California’s broad legislation and New York’s administrative regulations based in state sovereignty under the Tenth Amendment and equal protection for its non-citizen population provide alternative pathways that recognize the value of non-citizen participation in a state’s regulated professions and teaching. Part I describes the California legislation, and its stated purpose and reasoning. It relates the reported comments made about the legislation, including its social and economic effects. California decided that it was in its best economic and social interest to focus on competency qualifications for professionals, regardless of immigration status.10 The Article describes the occupations to which the legislation applies and the California administrative process that regulates and issues licenses and teacher certifications. Appendix 1 details these occupations and their statutory and regulatory basis. Part II describes the regulatory changes made in New York. Appendix 2 details the covered professions and their state statutory basis. It explains the New York regulatory system, New York’s final regulations, the professions to which they apply, and the non-citizen categories that are now eligible for licensing and teacher certification. New York chose to allow licensing to a broad category of non- citizens not unlawfully present, including those permanently residing in the state under color of law (“PRUCOL”), and those with DACA.11 10 CAL. BUS. & PROF. CODE § 135.5(a) (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 11 Memorandum from Douglas E. Lentivech & John L. D’Agati to Bd. of Regents Prof’l Practice Comm., Higher Educ. Comm. (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 39 Part III details the federalism and equal protection issues involved in the state regulation of licensing. The New York Board of Regents confronted both of these issues in the consideration of regulatory change.12 Part IV reviews and responds to the issues raised by the comments made in New York’s regulatory process. These issues include the socio- economic advantages of the regulations to the State and its residents, the question of whether the regulations should have removed any restrictions based on immigration status, as did the California statute, and whether the regulations benefited or disadvantaged members of military families. Part V discusses the insights for other states and their residents from the New York and California experience. The Article concludes that a comprehensive approach to the inclusion of non-citizens in a state’s professions and teaching provides economic and social advantage for a state and its communities, and that state sovereignty allows states to regulate the eligibility of non-citizens. II. CALIFORNIA’S LEGISLATIVE APPROACH A. The California Legislation The California legislation addressed the issue of professional licensing for non-citizens for numerous professions.13 The legislation was signed by Governor Brown in 2014 and made effective as of January 2016. 14 The California Business and Professions Code clearly stated its purpose. The statute states, The Legislature finds and declares that it is in the best interests of the State of California to provide persons who are not lawfully present 12 Id. 13 See infra Appendix 1. 14 Vote Smart, SB 1159 - Authorizes Undocumented Immigrants to Receive Professional Licenses - Key Vote, VOTE SMART, https://votesmart.org/bill/19373/50908/69557/jerry-brown-signed-sb-1159- authorizes-undocumented-immigrants-to-receive-professional- licenses#50908 (last visited Oct. 22, 2017). 40 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 in the United States with the state benefits provided by all licensing acts of entities within the department . . . .15 The law provides that no entity within the California Department of Consumer Affairs (“DCA”) “shall deny licensure to an applicant based on his or her citizenship status or immigration status.” 16 It also removes the citizenship and immigration status requirements for a physician and surgeon’s certificate. 17 The law further requires that individuals applying for licenses have to provide either a federal tax identification number or a social security number, predominately for the purpose of identifying persons affected by state tax laws.18 The change from prior law now affords the option of using a federal tax identification number instead.19 B. The California System of Professional Licensing and Teacher Certification The California statute applies to the professions regulated by the DCA. 20 The DCA issues licenses, certificates, registrations and permits in over 250 business and professional categories.21 There are several profession- 15 CAL. BUS. & PROF. CODE § 135.5(a) (West, Westlaw through Ch. 467 of 2017 Reg.Sess). 16 CAL. BUS. & PROF. CODE § 135.5(b) (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 17 See CAL. BUS. & PROF. CODE § 2050 (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 18 S. 1159, 2013-2014 (Cal. 2014), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2013201 40SB1159. 19 See id. 20 CAL. BUS. & PROF. CODE § 135.5(b) (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 21 See DCA Boards/Bureaus, CAL. DEP’T CONSUMER AFF., http://www.dca.ca.gov/about_dca/entities.shtml (last visited Oct. 22, 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 41 specific regulatory boards under its supervision. 22 These regulatory boards license, register, and certify individuals and businesses in particular occupations, and discipline license holders who violate practice requirements.23 Boards are semiautonomous. 24 The Governor, the Senate Rules Committee, or the Speaker of the Assembly appoints members.25 State law sets the number of board members and who they represent.26 Members of a board include people representing the profession and people representing the public.27 The Boards, with the assistance of their staffs, set the standards for licensing and renewal of licenses including education, experience, examination, and continuing education requirements.28 They receive, review and issue licenses.29 22 CAL. BUS. & PROF. CODE § 101 (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 23 CAL. DEP’T OF CONSUMER AFFAIRS, 2016 ANNUAL REPORT 9 (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf. 24 Id. 25 Id. 26 Id. 27 Id. 28 See CAL. DEP’T OF CONSUMER AFFAIRS, WHO WE ARE & WHAT WE DO 14 (2015), http://www.dca.ca.gov/publications/dca_booklet.pdf; CAL. BUS. & PROF. CODE § 101.6 (West, Westlaw through Ch. 467 of 2017 Reg.Sess.) stating that the Boards: establish minimum qualifications and levels of competency and license persons desiring to engage in the occupations they regulate upon determining that such persons possess the requisite skills and qualifications necessary to provide safe and effective services to the public, or register or otherwise certify persons in order to identify practitioners and ensure performance according to set and accepted professional standards. They provide a means for redress of grievances by investigating allegations of unprofessional conduct, incompetence, fraudulent action, or unlawful activity brought to their attention by members of the public and institute disciplinary action against persons licensed or registered under the provisions of this code when such action is warranted. In addition, they conduct periodic checks of licensees, registrants, or otherwise certified persons in 42 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 They review complaints and engage in disciplinary actions.30 They implement the legislation and regulations relevant to the supervised occupations.31 The DCA’s Division of Investigation is the law enforcement branch that addresses misconduct by licensees or unlicensed activity.32 It works closely with the Boards that supervise particular professions. DCA’s Office of Professional Examination Services ensures that licensing examinations are valid and occupation related.33 The Department’s responsibility is to protect and serve California’s consumers.34 It provides access to ethical and competent service providers by assuring that a person who holds a license has met California’s competency order to ensure compliance with the relevant sections of this code. 29 Id. 30 Id. 31 See CAL. DEP’T OF CONSUMER AFFAIRS, 2016 ANNUAL REPORT 9 (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf, which includes legislation and regulations relevant to each supervised occupation; see also CAL. DEP’T OF CONSUMER AFFAIRS, 2017-2020 STRATEGIC PLAN 3 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. 32 California Department of Consumer Affairs, supra note 22 at 4. 33 See California Department of Consumer Affairs, supra note 25 at 4–5. 34 See CAL. DEP’T OF CONSUMER AFFAIRS, 2017-2020 STRATEGIC PLAN 2 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. The DCA was created in 1876 to protect consumers. See CAL. DEP’T OF CONSUMER AFFAIRS, WHO WE ARE & WHAT WE DO 14 (2015), http://www.dca.ca.gov/publications/dca_booklet.pdf. The statutory purpose of the DCA is as follows: [B]oards, bureaus, and commissions in the department are established for the purpose of ensuring that those . . . deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California. CAL. BUS. & PROF. CODE § 101.6 (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 43 qualifications such as education, experience and examination requirements.35 It further protects the health, safety and welfare of Californians by ensuring its boards and bureaus prevent harmful conduct by licensed professionals and eliminate unlicensed activity. 36 The change in the law removing restrictions based on immigration status allows the sole focus of the Department of Consumer Affairs and the Boards to be on applicants’ expertise, the competency criteria for licensed professions, and the requirements and process to assure consumer protection through enforcement of competency and licensing requirements. Lawyers and teachers are regulated by other California state entities. A statute in 2013 provided for bar membership by the California Supreme Court without regard to immigration status.37 Teaching certification is regulated by the California Commission on Teacher Credentialing, which “serve[s] as a state standards board for educator preparation for the public schools of California, the licensing and credentialing of professional educators in the State, the 35 See CAL. DEP’T OF CONSUMER AFFAIRS, 2017-2020 STRATEGIC PLAN 2 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. 36 Id. at 6. 37 CAL. BUS. & PROF. CODE § 6064(b) (West); CAL. BUS. & PROF. CODE § 6064(b) (West); CAL. BUS. & PROF. CODE § 6064(b) (West, Westlaw through Ch. 467 of 2017 Reg.Sess) (providing that the California Supreme Court may admit an applicant who is not lawfully present in the United States as an attorney at law if the applicant has fulfilled the requirements for admission to practice law) (amended 2013); Accord In re Garcia, 315 P.3d 117 (Cal. 2014) (holding that state law and state public policy do not preclude admitting undocumented immigrants to the state bar); Accord Matter of Vargas, 10 N.Y.S.3d 579 (App. Div. 2015) (holding that an undocumented non-citizen may be afforded bar membership in New York). For discussions of bar membership, see generally FRANCES DÁVILA ET AL., BICKEL & BREWER LATINO INST. FOR HUMAN RIGHTS AT N.Y. UNIV. SCH. OF LAW & LATINOJUSTICE PRLDEF, LIFTING THE BAR: UNDOCUMENTED LAW GRADUATES & ACCESS TO LAW LICENSES (2014), http://latinojustice.org/briefing_room/resources/REPORT_Lifting_the_Bar_ Undocumented_Law_Graduates_Access_to_Law_Licenses_Feb_2014.pdf; Janet M. Calvo et al., Footnote Forum, DACA and NY Bar Eligibility, 17 CUNY L. REV. 47 (2013), http://www.cunylawreview.org/wp- content/uploads/2013/11/14-Calvo-Lung-Newman.pdf; Olivas, supra note 8. 44 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 enforcement of professional practices of educators, and the discipline of credential holders in the State of California.”38 The California teaching license application requires applicants to provide either a social security number or tax identification number.39 C. Professions Covered by the Legislation The statute that precludes immigration category as a criterion for licensing covers numerous health-related professions.40 These include: acupuncturists, clinical social workers, educational psychologists, marriage and family therapists, chiropractors, dentists, dental hygienists, doctors, research psychoanalysts, midwives, naturopathic doctors, occupational therapists, optometrists, dispensing opticians, osteopathic physicians and surgeons, pharmacists, physical therapists, physical therapist assistants, physician assistants, podiatric doctors, nurses, nurse midwives, nurse practitioners, audiologists, speech-language pathologists, veterinarians, and psychologists.41 Other occupations licensed by the DCA include a long list of professional and business-related occupations.42 Some of the professions included are accountants, architects, certified shorthand court reporters, engineers, land surveyors, geologists, geophysicists, landscape architects, professional fiduciaries, real estate brokers, and security and investigative services professionals. Appendix 1 includes a 38 About the Commission, Cal. Comm’n on Teacher Credentialing, https://www.ctc.ca.gov/commission/default (last updated May 9, 2017). 39 Application for Credential Authorizing Public School Service, CAL. COMM’N ON TEACHER CREDENTIALING, https://www.ctc.ca.gov/docs/default- source/leaflets/414.pdf?sfvrsn=24453907_2 (last modified Apr. 2017). 40 CAL. BUS. & PROF. CODE § 135.5 (West, Westlaw through Ch. 467 of 2017 Reg.Sess.). 41 See infra Appendix 1 for a full list and for the relevant state statutes. 42 Id. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 45 full list of the occupations licensed by the California DCA.43 D. History of the Legislation and Positions in Favor and Opposed California State Senator Ricardo Lara championed the California legislation that removed immigration category as a criterion for licensing.44 He stated that the law creates new economic opportunities for California’s immigrant workforce and also stimulates the California economy.45 He noted that highly skilled immigrants would be able to contribute both their talents and their tax dollars. 46 He further pointed out that immigrants in California are entrepreneurial, thereby contributing to California’s economic output, and that undocumented immigrants alone contributed about 130 billon of California’s gross domestic product.47 A California Senate Floor Bill Analysis stated the positions in support of the licensing legislation.48 The Los Angeles Area Chamber of Commerce noted that many non- citizens come to California as children and are educated in elementary and secondary schools in the state. Many continue onto higher education, availing themselves of state laws that offer access to in-state tuition. They overcome many obstacles to succeed, but without access to professional licenses, they are limited in their ability to contribute to the 43 Id. 44 See Ricardo Lara, Realizing the DREAM: Expanding Access to Professional Licenses for California’s Undocumented Immigrants, 27 HARV. J. HISP. POL’Y 26 (2014). 45 Id. at 27. 46 Id. 47 Id. 48 Senate Floor Analyses, Bill Analysis for SB-1159 Professions and Vocations: License Applicants: Individual Tax Identification Number, CAL. LEGIS. INFO. (Aug. 29, 2014) at 7–8 http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=2013 20140SB1159. 46 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 state.49 The California Immigrant Policy Center similarly stated that without access to professional licenses, individuals would be limited in their economic contributions to the State, because they would be restricted in their ability to participate in the workforce or start a business.50 The National Association of Social Workers stated that it was in the best interest of the state to support efforts to educate its workforce and enable all residents to improve their economic mobility and self-sufficiency.51 Several other groups also supported the legislation including Educators for Fair Consideration, Pre-Health Dreamers, the American Civil Liberties Union of California, the Coalition for Humane Immigrant Rights of Los Angeles, and the Mexican American Legal Defense and Educational Fund. 52 These organizations asserted that allowing professional licensure improves access to economic opportunities to immigrants in California. 53 Further, enabling more Californians to work as licensed professionals will increase immigrants’ contributions to the State’s economy. 54 They pointed out that California is currently home to more than 10 million immigrants, 1.85 million who are undocumented workers. These immigrant workers contributed an estimated $2.7 billion in state taxes in 2010.55 They also noted that by expanding eligibility for professional licenses regardless of immigration status, California was recognizing immigrant contributions and continuing immigrant integration efforts.56 49 Id. at 7. 50 Id. at 8. 51 Id. 52 Advocates Applaud Signing of Professional Licensing Bill for Immigrants, ACLU NORTHERN CAL. (Sept. 28, 2014), https://www.aclunc.org/news/advocates-applaud-signing-professional- licensing-bill-immigrants. 53 Id. 54 Id. 55 Id. 56 Id. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 47 The Federation of American Immigration Reform opposed the bill arguing that California should not obliterate the distinction between people legally present and those who are in violation of federal law.57 The legislative record does not include a response to this objection. However, the California Supreme Court responded to a similar argument in the context of bar admission in the case In re Garcia.58 The California state legislature passed a law allowing the bar admission of applicants “not lawfully present in the United States.”59 The California Court examined whether there were any reasons under state law that undocumented immigrants, as a class or group, should not be admitted to the State Bar, and whether Mr. Garcia as an individual possessed the requisite character and fitness for bar admission.60 The court concluded there was no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California and that Mr. Garcia “met his burden of demonstrating that he possesse[d] the requisite good moral character to qualify for a law license.” 61 Mr. Garcia was admitted to the California bar in January 2014.62 The court responded to objections to the bar membership of undocumented non-citizens raised by Amicus. 63 The Amicus argued that an undocumented immigrant could not properly take the oath of office required of an attorney because an undocumented immigrant is in violation of federal immigration law simply by being present 57 Legislative Update: 5/21/2014, FED’N FOR AM. IMMIGR. REFORM (May 21, 2014), http://www.fairus.org/legislative-updates/legislative- update-5-21-2014. 58 In re Garcia, 315 P.3d 117 (Cal. 2014). 59 CAL. BUS. & PROF. CODE § 6064(b) (West 2017). 60 In re Garcia, 315 P.3d at 129–30. 61 Id. at 134. 62 Undocumented Immigrant Granted Law License by Calif. Supreme Court, CBS NEWS (Jan. 2, 2014, 6:34 PM), https://www.cbsnews.com/news/sergio-garcia-undocumented-immigrant- granted-law-license-by-california-supreme-court/. 63 In re Garcia, 315 P.3d at 129–30. 48 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 in the country without authorization.64 The court looked at the issue of conduct related to the oath broadly, and stated that the fact that a bar applicant’s past or present conduct may violate some law does not invariably render the applicant unqualified to be admitted to the bar or to take the required oath.65 The court concluded that the fact that an undocumented immigrant is present in the United States without lawful authorization does not involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California. 66 In doing so, the court noted that an undocumented immigrant’s presence in this country can result in a variety of civil sanctions, but is not a crime, and that federal law grants federal immigration officials broad discretion in determining under what circumstances to seek to impose civil sanctions upon an undocumented immigrant and in determining what sanctions to pursue.67 The court concluded that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not a sufficient or persuasive basis for denying undocumented immigrants admission to the State Bar as a class.68 III.NEW YORK’S REGULATORY APPROACH A. The New York Regulations On May 17, 2016, the New York State Board of Regents permanently adopted the Commissioner of Education’s regulations to provide expanded categories of non-citizens’ eligibility for professional licenses.69 The New 64 Id. 65 Id. at 130. 66 Id. 67 Id. 68 Id. at 131. 69 Board of Regents Permanently Adopts Regulations to Allow DACA Recipients to Apply for Teacher Certification and Professional No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 49 York Board of Regents also addressed teacher certifications required for public school teachers. 70 The regulations provide that no otherwise qualified individual shall be denied a professional license or teacher certification “if the individual is not unlawfully present in the United States, including but not limited to individuals granted DACA relief or similar relief from deportation.”71 The memorandum that responded to comments clarified that those with similar relief include non-citizens who are PRUCOL.72 B. The New York System of Professional Licensing and Teacher Certification The New York State Board of Regents has special authority over a combination of state education policy, educational institutions, and professional licensing. 73 The Regents provide guidance for and supervision of the New York State Department of Education and the University of Licenses, N.Y. ST. EDUC. DEP’T (May 17, 2016), http://www.nysed.gov/news/2016/board-regents-permanently-adopts- regulations-allow-daca-recipients-apply-teacher. 70 Id. 71 N.Y. COMP. CODES R. & REGS. tit. 8 § 59.4 (2017); N.Y. COMP. CODES R. & REGS. tit. 8 § 80-1.3 (2017) 72 Memorandum from Douglas E. Lentivech to Professional Practices Committee & Higher Education Committee (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 73 N.Y. EDUC. LAW § 201 (McKinney 2009), N.Y. EDUC. LAW § 207 (McKinney 2009), N.Y. EDUC. LAW § 6506 (McKinney 2016). This Article does not address all the occupations licensed or certified in New York State. According to the New York Department of Labor 130 occupations are licensed or certified by New York State’s different agencies. New York State Department of Labor, Occupations Licensed or Certified by New York State, https://www.labor.ny.gov/stats/lstrain.shtm. They have different criteria for non-citizens. For example, the New York State Department of State licenses numerous occupations. Its application forms do not generally inquire into citizenship or immigration category. See for examples, barber, https://www.dos.ny.gov/licensing/barber/barbering_faq.html#; https://www. dos.ny.gov/licensing/lawbooks/barber.pdf, real estate appraiser, http://www.dos.ny.gov/forms/licensing/en/1432-f-a.pdf, and athlete agent, http://www.dos.ny.gov/forms/licensing/1640-a.pdf. 50 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 the State of New York. 74 This includes the education department’s Office of the Professions and the Office of Teaching Initiatives. The Board of Regents is a unique governmental entity established by the New York State Constitution.75 The New York State Legislature elects the seventeen members of the Board of Regents, one from each of the state’s thirteen judicial districts and four at large members.76 The New York Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practices of the professions.77 The New York Department of Education’s Office of Professional Licensing is assisted by State Boards78 and determines license eligibility for over fifty professions. 79 Specific qualifications are set for each profession and may require particular education and courses, examination scores, and experiential or clinical education.80 C. Professions Covered by the Regulations New York's system of professional regulation encompasses nearly 900,000 practitioners and over 30,000 professional practice business entities. 81 Many of the licensed professions are health related, including medicine 74 About the University of the State of New York (USNY), http://www.nysed.gov/about/about-usny. 75 N.Y. CONST. art. XI, § 2 (McKinney 2006). 76 N.Y. EDUC. LAW § 201 (McKinney 2009); see also New York State Education Department, About the Board of Regents, http://www.regents.nysed.gov/about. 77 N.Y. EDUC. LAW § 6504 (McKinney 2016). 78 New York State Department of Education, State Boards for the Professions http://www.op.nysed.gov/boards/; New York State Department of Education, State Boards for the Professions Statutory Composition & Current Membership, http://www.op.nysed.gov/boards/bdcomp.htm 79 New York State Department of Education, The Licensed Professions in New York State, http://www.op.nysed.gov/prof/. 80 See, e.g., N.Y. COMP. CODES R. & REGS. tit. 8, Part 60 (2015). 81 New York State Department of Education, Office of the Professions, http://www.op.nysed.gov/. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 51 (physicians and physician assistants), nursing, dentistry, midwifery, pharmacy, occupational and physical therapy, acupuncture, behavior analysis, audiology, chiropractic, dietetics, laboratory technology, massage therapy, medical physics, mental health practitioners, optometry, perfusion, podiatry, psychology, athletic training, respiratory, speech and language therapy, and veterinary medicine. Other professions include social work, architecture, engineering, public accountancy, geology, land surveying, landscape architecture, interior design and shorthand reporters. 82 Appendix 2 lists these professions, the applicable state statutes and links to the application forms. The New York Education Law does not restrict licensure based on one’s immigration category for a broad number of professions. Twenty-nine professions do not have any statutory requirements regarding citizenship, legal permanent residency, or any immigration category. Additionally, for nine occupations, the New York Education Law does not have any immigration category requirements and further specifically states that an individual does not need to meet any requirement of United States citizenship.83 For thirteen professional licenses, the education law required legal permanent residence. 84 However, in Dandamudi v. Tisch, 85 the Second Circuit struck down as unconstitutional requirements in New York Education Law that a license applicant had to be a citizen or a legal permanent resident.86 This decision applied to the statute regarding pharmacists and other New York statutes that similarly restricted licenses for twelve additional 82 New York State Department of Education, The Licensed Professions in New York State, http://www.op.nysed.gov/prof/. 83 See Appendix 2. 84 Id. 85 686 F.3d 66 (2d Cir. 2012). 86 N.Y. EDUC. LAW § 6805(1)(6) (McKinney 2016). 52 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 professions. 87 The Dandamudi decision resulted in the removal of all immigration category restrictions for professional licenses from these provisions of the education law, as they are all unconstitutional on the same reasoning.88 After Dandamudi, the New York legislature did not impose any further restrictions on professional licensing for non- citizens.89 The New York Education Law establishes certification by the State Education Department as a qualification to teach in the public schools of New York State.90 The Office of Teaching Initiatives is responsible for teacher certification. 91 New York State teachers, administrators, and pupil personnel service providers are required to hold a New York State certificate in order to be employed in the State’s public schools.92 The Office certifies that an individual has met required degree, coursework, assessment, and experience requirements. Certificates are issued in a number of titles in three major categories: classroom teaching, administrative and supervisory, and pupil personnel service (e.g., school counselor, psychologist, 87 New York State Education Department, U.S. Court of Appeals Decision on Litigation Involving 13 Professions that Require U.S. Citizenship or Permanent Lawful Residence for Licensure, http://www.op.nysed.gov/news/advisory-notices.html#appeals. 88 As the Second Circuit noted, similar provisions of the New York Education Law required non-citizens to be legal permanent residents to be licensed as physicians, chiropractors, dentists, dental hygienists, veterinarians, veterinary technicians, midwives, engineers, land surveyors landscape architects, certified shorthand reporters and massage therapists. Dandamudi, 686 F.3d at 75–76. 89 Proposed legislation would afford licensing to those who are New York state residents, who have requested a state identification number as citizens of the state. New York Senate Bill No. 776A, https://www.nysenate.gov/legislation/bills/2015/S776. 90 N.Y. EDUC. LAW § 3001(2) (McKinney 2015). 91 New York State Education Department, Office of Teaching Initiatives, Certification from Start to Finish (2017), http://www.highered.nysed.gov/tcert/certificate/certprocess.html. 92 Id. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 53 social worker). 93 The New York Education Law states a citizenship requirement as a qualification for teaching in the public schools of New York State. However, under the statute, the Commissioner of Education’s regulations can authorize aliens to teach in the public schools.94 D. Regulatory History The regulations regarding non-citizen eligibility for professional licenses and teacher certification became effective on June 1, 2016, after a final vote by the New York State Board of Regents on May 17, 2016.95 At its February 2016 meeting the Board of Regents Higher Education Committee and Professional Practice Committee discussed amending regulations relating to non- citizen’s eligibility for professional licenses and teacher certification. 96 The proposed regulations were published in the New York State Register on March 9, 2016 designating a forty-five-day comment period.97 The Board of Regents Higher Education Committee and Professional Practice Committee 93 Id. 94 N.Y. EDUC. LAW § 3001(3) (McKinney 2015). 95 New York State Education Department, Board of Regents Permanently Adopts Regulations to Allow DACA Recipients to Apply for Teacher Certification and Professional Licenses (May 17, 2016), http://www.nysed.gov/news/2016/board-regents-permanently-adopts- regulations-allow-daca-recipients-apply-teacher. 96 Memorandum from Douglas E. Lentivech & John L. D’Agati to Board of Regents Professional Practice Committee, Higher Education Committee (February 16, 2016), https://www.regents.nysed.gov/common/regents/files/216heppcd1.pdf; New York State Education Department, Report of Regents Higher Education/Professional Practice Joint Meeting Committee to The Board of Regents (2016), https://www.regents.nysed.gov/report/feb-2016/higher- education-professional-practice. 97 MEMORANDUM FROM DOUGLAS E. LENTIVECH & JOHN L. D’AGATI TO BOARD OF REGENTS PROFESSIONAL PRACTICE COMMITTEE, HIGHER EDUCATION COMMITTEE (May 9, 2016), https://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 54 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 recommended the amendment of the regulations98 after the presentation of a review of the proposed amendments and the comments received. The final vote of the Board of Regents approved amendments to two regulations. The first regulation applies to eligibility for the professional licenses supervised by the Department of Education’s Office of Professional Licensing.99 The second regulation applies to eligibility for teacher certification and registration.100 98 NEW YORK STATE EDUCATION DEPARTMENT, REPORT OF REGENTS HIGHER EDUCATION/PROFESSIONAL PRACTICE JOINT MEETING COMMITTEE TO THE BOARD OF REGENTS (May 2016), https://www.regents.nysed.gov/report/may-2016/higher-education- professional-practice. 99 N.Y. COMP. CODES R. & REGS. tit. 8, § 59.4 (2017) “Notwithstanding any other provision of this Title to the contrary, no otherwise qualified applicant shall be denied a license, certificate, limited permit or registration pursuant to this Title by reason of his or her citizenship or immigration status, unless such applicant is otherwise ineligible for a professional license under 8 USC section 1621 or any other applicable Federal law. Provided, however that pursuant to 8 USC section 1621(d), no otherwise qualified applicant alien shall be precluded from obtaining a professional license under this Title if an individual is not unlawfully present in the United States, including but not limited to individuals granted Deferred Action for Childhood Arrivals relief or similar relief from deportation.” 100 N.Y. COMP. CODES R. & REGS. tit. 8, § 80-1.3 (2017) “Notwithstanding any other provision this Part to the contrary, no otherwise qualified applicant shall be denied a certificate under this Part, or registration pursuant to this Title by reason of his or her citizenship or immigration status, unless such applicant is otherwise ineligible for a professional license under 8 USC section 1621 or any other applicable Federal law. Provided, however that pursuant to 8 USC section 1621(d), no otherwise qualified alien shall be precluded from obtaining a professional license under this Title if an individual is not unlawfully present in the United States, including but not limited to applicants granted Deferred Action for Childhood Arrivals relief or similar relief from deportation.” It also states that: (b) The requirements of subdivision (a) of this section shall not preclude a candidate who is not a citizen of the United States from qualifying for a permit or other authorization to teach in the public schools of New York State, in accordance with specific provisions of the Education No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 55 E. The Non-Citizen Categories Eligible for Licensing and Certification The regulations provide that no otherwise qualified alien shall be precluded if the individual is not unlawfully present in the United States, including but not limited to applicants afforded DACA, or similar relief from deportation.101 A response to a comment clarified that those with similar relief include non-citizens who are PRUCOL.102 The regulations also provide that non-citizens designated as “qualified aliens,” 103 nonimmigrants 104 , and non-citizens paroled for less than one year 105 under federal law are eligible for licensing. 106 New York thereby considers all these categories of non-citizens as lawfully present in the state.107 Law that authorize such teaching service by a candidate who is not a citizen of the United States, such as section 3005 of the Education Law. Section 3005 of the education law allows non-citizens from other states or countries in an exchange program with New York State teachers to be certified or registered in New York. 101 See also New York State Education Department, Office of Teaching Initiatives, Citizenship/Immigration Status, http://www.highered.nysed.gov/tcert/certificate/citizenshipreq.html. 102 MEMORANDUM FROM DOUGLAS E. LENTIVECH TO PROFESSIONAL PRACTICES COMMITTEE & HIGHER EDUCATION COMMITTEE (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 103 8 U.S.C. § 1641 (2012). 104 8 U.S.C. § 1101(a)(15) (2012). 105 8 U.S.C. § 1182(d)(5) (2012). 106 8 U.S.C. § 1621 (2012). 107 New York also considers DACAs as lawfully present for purposes of in-state tuition and eligible as residents of the state. See The City University of New York, University Tuition &Fee Manual, IV Residency, Part 1, Qualifying Immigration Statuses, 6 http://www2.cuny.edu/about/administration/offices/legal-affairs/university- tuition-fee-manual/iv-residency/ New York, like a number of other states, has statutes that make persons who have graduated from high school in New York eligible for in-state tuition even if they are not lawfully present in the state. N.Y. EDUC. LAW §§ 355(2)(h)(8); 6206(7)(a), (a-1); 6301(5). These statutes are a reaction to a federal statute that requires states to afford in-state tuition to any citizen if it provides in-state tuition to an 56 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 1. Deferred Action for Childhood Arrivals (“DACA”) The Department of Homeland Security afforded DACA for some non-citizens who entered the country when children through a 2012 memorandum by the Secretary of Homeland Security.108 DACA is a form of deferred action; deferred action has been available to non-citizens for many alien who is not lawfully present on the basis of state residency. 8 U.S.C. § 1623(a) (2012). However, as DACAs are lawfully present this restriction does not apply to them and they can be afforded in-state tuition as state residents. But, not all states have agreed and there have been court challenges on the issue. See, e.g., Adhiti Bandlamudi, DACA Students Argue For In-State Tuition To Ga. Court Of Appeals, WABE 90.1, Jun 16, 2017, http://news.wabe.org/post/daca-students-argue-state-tuition-ga- court-appeals; see also Institute for Higher Education Law and Governance, UNIV. HOUS. L. C., Immigration Litigation in Higher Education and Challenges to DACA program (2004-2015) Immigration- related challenges to financial aid/residency, including DACA, http://www.law.uh.edu/ihelg/DACA/immigration-litigation.asp There has also been some controversy regarding DACA eligibility for Drivers’ Licenses as persons who are lawfully present. See National Immigration Law Center, Access to Driver’s Licenses for Immigrant Youth Granted DACA, https://www.nilc.org/issues/drivers-licenses/daca-and- drivers-licenses/ and Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017). 108 Memorandum from the Janet Napolitano, Sec’y of Homeland Security, Exercising Prosecutorial Discretions with Respect to Individuals Who Came to the United States as Children (Jun. 15, 2012). http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion- individuals-who-came-to-us-as-children.pdf; Consideration of Deferred Action for Childhood Arrivals Process, DEP’T OF HOMELAND SEC., U.S. CITIZENSHIP AND IMMIGRATION SERVS., http://www.uscis.gov/humanitarian/consideration-deferred-action- childhood-arrivals-daca#guidelines; Frequently Asked Questions, DEP’T OF HOMELAND SEC., U.S. CITIZENSHIP AND IMMIGRATION SERVS. (Jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCR D&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD (last visited July 11, 2013). For an analysis and critique of DACA, see Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students (June 11, 2012). William & Mary Bill of Rights Journal, Vol. 21, 2012. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 57 years.109 Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security. Further, there is a long-standing federal regulation that allows employment authorization to those with deferred action. 110 The USCIS reported that as of September 4, 2017 there were 689,800 active DACAs in the United States, 197,900 in California, and 32,900 in New York.111 The Department of Homeland Security through United States Citizenship and Immigration Services (“USCIS”), issued guidelines for DACA applicants. 112 Applicants had to have been under the age of 31 as of June 15, 2012, have come to the United States before age 16, lived in the United States continuously since June 15, 2007, and have graduated from or be currently enrolled in school, received a General Education Development (GED) certificate, or have been honorably discharged from the military. DACA applicants cannot have been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, or otherwise pose a threat to national security or public safety. Additionally, all applicants had to provide biometrics 109 See CHARLES GORDON, STANLEY MAILMAN, STEPHEN YALE- LOEHR, AND RONALD Y. WADA, IMMIGRATION LAW AND PROCEDURE (Matthew Bender, Rev. Ed.). See also SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION IN IMMIGRATION CASES (2015). 110 8 C.F.R. § 274a.12(c) (14). 111 Approximate Active DACA Recipients: State of Residence as of September 4, 2017, uscis.gov, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and %20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA /daca_population_data.pdf. 112 DEP’T OF HOMELAND SEC., CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS PROCESS, U.S. CITIZENSHIP AND IMMIGRATION SERVS., (Jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD &vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD#guidel ines. 58 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 and undergo background checks.113 DACA was granted for two years and could be renewed. During this time those granted DACA are not removable from the United States based on immigration status.114 They are eligible for authorization to work115 and can receive an “Employment Authorization Document.” 116 They are then issued social security numbers.117 In September of 2017, the Secretary of Homeland Security rescinded the 2012 DACA memorandum, 118 following the Trump administration announcement that it is 113 DEP’T OF HOMELAND SEC., U.S. CITIZENSHIP AND IMMIGRATION SERVS., INSTRUCTIONS FOR CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS, USCIS FORM I-821D, available at http://www.uscis.gov/files/form/i-821dinstr.pdf. 114 Memorandum from the Janet Napolitano, Sec’y of Homeland Security, Exercising Prosecutorial Discretions with Respect to Individuals Who Came to the United States as Children (Jun. 15, 2012). http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion- individuals-who-came-to-us-as-children.pdf. 115 The employment provisions of the immigration law target employers for sanction, rather than employees. The provisions prohibit an employer from hiring an individual as an employee to work in the U.S. if the employer knows or has reason to know that the individual is unauthorized to work in the U.S. 8 U.S.C. § 1324(a)(1) (2012). 116 “Q2: What is deferred action for childhood arrivals (DACA)? A2: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.” Frequently Asked Questions, DEP’T OF HOMELAND SEC., U.S. CITIZENSHIP AND IMMIGRATION SERVS. (Jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCR D&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD. 117 SOC. SECURITY ADMIN, SOCIAL SECURITY NUMBER—DEFERRED ACTION FOR CHILDHOOD ARRIVALS, available at http://www.socialsecurity.gov/pubs/deferred_action.pdf. 118 Memorandum from Elaine C. Duke, Acting DHS Secretary, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA), dhs.gov, https://www.dhs.gov/news/2017/09/05/memorandum- rescission-daca (September 5, 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 59 phasing out DACA. 119 DACA will continue for approved individuals until their current DACA permission expires. Those whose DACA permission will expire before March 5, 2018 can apply for an extension by making an application before October 5, 2017. Pending applications for DACA continued to be considered, but no new applications were processed.120 However, President Trump’s official statement affirmed, “I have advised the Department of Homeland Security that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang.”121 Furthermore, USCIS has a policy that it will not refer information obtained from DACA applications to immigration enforcement agencies except to address national security, public safety, serious criminal activity, or fraud.122 119 Deferred Action for Childhood Arrivals 2017 Announcement, USCIS, https://www.uscis.gov/daca2017 (last updated Sept. 5, 2017). 120 Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/frequently-asked-questions- rescission-deferred-action-childhood-arrivals-daca (last published Sept. 5, 2017). 121 The White House, Statement from President Donald J. Trump, Sept. 5, 2017 https://www.whitehouse.gov/the-press- office/2017/09/05/statement-president-donald-j-trump 122Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/frequently-asked-questions- rescission-deferred-action-childhood-arrivals-daca (last published Sept. 5, 2017) “ Q7: Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes? A7: Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). “ USCIS, Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, November 7, 2011, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_F iles_Memoranda/NTA%20PM%20%28Approved%20as%20final%2011-7- 11%29.pdf. 60 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 There is some potential for the continuation of DACA or an alternative that provides immigration status for those who came to the United States as children. Several cases have challenged the rescission of DACA, 123 including lawsuits brought by the Attorneys General of New York124 and California. 125 They assert that the rescission is unconstitutional and violates the Administrative Procedure Act, among other claims. Also, legislation has been proposed that would afford those who came to the United States as 123 There are two cases in New York: Compl. for Declaratory and Injunctive Relief, New York v. Donald Trump, No. 17-CV-5228 (E.D.N.Y. Sept. 6, 2017) https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_- _17cv5228.pdf; Letter from Michael J. Wishnie to Judge Nicholas G. Garaufis re: Batalla Vidal et al. v. Baran et al., No. 1:16-CV-04756 dated Sept. 5, 2017 https://t.co/TdSCovtF6U?amp=1; There are four cases in California: Compl. for Declaratory and Injunctive Relief, The Regents of the University of California v. U.S. Dep’t of Homeland Security, No. 3:17-CV-05211 (N.D. Cal. Sept. 8, 2017) https://t.co/rtXwjaUGEB?amp=1; Compl. for Declaratory and Injunctive Relief, California v. U.S. Dep’t of Homeland Security (N.D. Cal. Sept. 11, 2017) https://t.co/7quA5nYkbG?amp=1; Compl. for Violation of Fifth Amendment Equal Protection and Violation of 5 U.S.C. §§ 553 & 706(2)(D), City of San Jose v. U.S., No. 5:17-cv-05329 (N.D. Cal. San Jose Div., Sept. 14, 2017); Compl. for Declaratory and Injunctive Relief, Dulce Garcia v. U.S., 3:17-CV-05380 (N.D. Cal. San Fran. Div., Sept. 18, 2017) https://www.scribd.com/document/359320225/Dulce-Garcia-Et-Al-v- United-States-Et-Al 123 Sixteen State Attorney Generals joined together in a lawsuit filed in the U.S. District Court for the Eastern District of New York. https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protect- dreamers-and-preserve-daca; https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_- _17cv5228.pdf. 124 Sixteen State Attorney Generals joined together in a lawsuit filed in the U.S. District Court for the Eastern District of New York. https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protect- dreamers-and-preserve-daca; https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_- _17cv5228.pdf 125 Compl. for Declaratory and Injunctive Relief, California v. U.S. Dep’t of Homeland Security (N.D. Cal. Sept. 11, 2017) https://t.co/7quA5nYkbG?amp=1. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 61 children a pathway to a regular immigration status. 126 President Trump has tweeted that if Congress does not legalize DACA in six months, he will revisit the issue.127 2. Permanently Residing Under Color of Law (“PRUCOL”) The New York memorandum responding to comments on proposed regulations clarified that non-citizens who are PRUCOL, are eligible for licensing and teacher certification. 128 PRUCOL is a term in New York court decisions, 129 regulations 130 and administrative 126 Dream Act of 2017, S. 1615, 115th Cong. (2017-2018), https://www.congress.gov/bill/115th-congress/senate-bill/1615/text; Dream Act of 2017, H.R. 3440, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/3440/text; American Hope Act of 2017, H.R. 3591, 115th Cong. (2017-2018), https://www.congress.gov/bill/115th-congress/house-bill/3591/text?r=1. 127 Donald J. Trump (@realDonaldTrump), TWITTER (Sept. 5, 2017, 5:38 PM), https://twitter.com/realDonaldTrump/status/905228667336499200. Glenn Thrush and Maggie Haberman, To Allies’ Chagrin, Trump Swerves Left, N.Y. TIMES: POLITICS NEWS ANALYSIS, https://www.nytimes.com/2017/09/06/us/politics/trump-democrats- deal.html (Sept. 6, 2017); Donald J. Trump (@realDonaldTrump), TWITTER (Sept. 14, 2017, 3:28 AM) https://twitter.com/realDonaldTrump/status/908276308265795585; Peter Jacobs and Bryan Logan, 'If we don't have the wall, we're doing nothing': Trump pushes back on intense criticism over dealing with Democrats on immigration, Sep. 14, 2017 http://www.businessinsider.com/trump-tweets- no-deal-on-daca-2017-9. 128 Memorandum from Douglas E. Lentivech & John L. D’Agati to Board of Regents Professional Practice Committee, Higher Education Committee (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 129 See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977) cert. denied sub nom., Shang v. Holley, 435 U.S. 947 (1978); Aliessa v. Novello, 96 N.Y.2d 418 (2001); Papadopoulos v. Shang, 67 A.D.2d 84 (1st Dep’t 1979); Brunswick Hosp. Center, Inc. v. Daines, , 26 Misc.3d 1225(A) (2010); Tonashka v. Weinberg, 178 Misc.2d 280 (N.Y. Sup. Ct. 1998); see also Janet M. Calvo, Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs, 16 N.Y.U. REV. L & SOC. CHANGE 395 (1988). 62 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 memorandums. 131 According to the New York Court of Appeals, the PRUCOL designation is used to classify aliens of whom immigration authorities are aware, but are not deporting.132 New York regulation and directives state that the term includes those who are residing in the United States with the knowledge and acquiescence or permission of federal immigration authorities whose departure the federal agency does not contemplate enforcing.133 A non-citizen is considered an individual whose departure the USCIS does not contemplate enforcing if, based on all the facts and circumstances of the particular case, it appears that the USCIS is otherwise permitting the immigrant to reside in the United States indefinitely, or it is the policy or practice of the USCIS not to enforce the departure of non-citizens in a particular category.134 PRUCOL includes non-citizens who have requested or been granted deferred action, have been paroled into the United States for a period of less than one year, are under an Order of Supervision, have been granted an indefinite stay of 130 N.Y. COMP. CODES R. & REGS. tit. 18, § 360-3.2(j)(ii) (explaining that a person is PRUCOL if such a person is “residing in the United States with the knowledge and permission or acquiescence of the federal immigration agency and whose departure from the U.S. such agency does not contemplate enforcing”). 131 E.g. OFFICE OF HEALTH INSURANCE PROGRAMS., N.Y. STATE DEP’T OF HEALTH GIS 08 MA/009, Documentation Guide to Citizenship and Immigrant Eligibility for Health Coverage in New York State http://onlineresources.wnylc.net/pb/docs/08ma009.pdf. 132 Aliessa v. Novello, 96 N.Y.2d 418 at n.2 (2001). 133 N.Y. COMP. CODES R. & REGS. tit. 18 § 360-3.2(j)(ii); OFFICE OF MEDICAID MGMT., N.Y. STATE DEP’T OF HEALTH, 04 OMM/ADM-7, CITIZENSHIP & ALIEN STATUS REQUIREMENTS FOR THE MEDICAID PROGRAM 21 (2004; https://www.health.ny.gov/health_care/medicaid/publications/docs/adm/04a dm-7.pdf. 134 OFFICE OF MEDICAID MGMT., N.Y. STATE DEP’T OF HEALTH, 04 OMM/ADM-7, CITIZENSHIP & ALIEN STATUS REQUIREMENTS FOR THE MEDICAID PROGRAM 19 (2004); https://www.health.ny.gov/health_care/medicaid/publications/docs/adm/04a dm-7.pdf. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 63 deportation, have been granted indefinite voluntary departure, have an approved immediate relative petition and family members covered by the petition, have properly filed an application for adjustment of status to lawful permanent resident, have been granted deferred enforced departure, entered and continuously resided in the United States before January 1, 1972 (registry eligible), or or have been granted suspension of deportation. It also includes individuals applying for adjustment of status, asylum, or suspension of deportation or cancellation of removal, citizens of the Federated States of Micronesia and the Marshall Islands, individuals granted Temporary Protected Status (TPS) and those applying for TPS, individuals with a K, V, S or U visa or applying for such a visa. It includes any other non-citizen living in the United States with the knowledge and permission or acquiescence of the federal immigration agency and whose departure the agency does not contemplate enforcing.135 New Yorkers who have requested Deferred Action are considered PRUCOL since federal immigration officials have knowledge of and have acquiesced in their presence; those granted DACA are PRUCOL because of the immigration authorities’ knowledge of and permission for their presence in the country. 136 Even in the event that DACA expires and new legislation is not enacted, those with expired DACA should continue as PRUCOL; they are New Yorkers within the knowledge and acquiescence of immigration officials unless in removal proceedings and 135 OFFICE OF HEALTH INSURANCE PROGRAMS., N.Y. STATE DEP’T OF HEALTH GIS 08 MA/009, Documentation Guide to Citizenship and Immigrant Eligibility for Health Coverage in New York State 10 http://onlineresources.wnylc.net/pb/docs/08ma009.pdf; The City of New York, Human Resources Administration/Department of Social Services, GUIDE TO HEALTH INSURANCE AND HEALTH CARE SERVICES FOR IMMIGRANTS IN NEW YORK CITY 7–8 (2016), https://www1.nyc.gov/assets/ochia/downloads/pdf/guide-to-health- insurance-for-immigrants.pdf; http://www1.nyc.gov/site/immigrants/help/city-services/insurance.page. 136 Id. 64 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 without relief applications pending. 137 Immigration authorities have extensive knowledge about each person with expired DACA from their applications and acquiesce to their presence through the policy of generally not referring expired DACAs for removal or the actual practice of not initiating removal proceedings against an individual who had DACA. 3. Non-citizen Categories Designated Under Federal Law The New York regulations include as eligible for licensing the categories of non-citizens listed as federally eligible for licensing. 138 This statute lists non-citizens designated as “qualified aliens,” 139 nonimmigrants, 140 and non-citizens paroled for less than one year. 141 “Qualified aliens” include legal permanent residents, non-citizens granted asylum, refugees, parolees for a year or more, non- citizens for whom deportation has been withheld, conditional entrants, Cuban Haitian entrants, certain “battered” aliens and applicants or recipients of T visas.142 IV. FEDERALISM AND EQUAL PROTECTION The regulation of occupational licensing is a traditional state function as part of a state’s control over the health, safety and welfare of its residents.143 As such, the 137 Id. 138 8 U.S.C. § 1621(a) (2012). 139 8 U.S.C. § 1641 (2012). 140 8 U.S.C. § 1101 (a)(15) (2012). 141 8 U.S.C. § 1182(d)(5) (2012). 142 8 U.S.C. § 1641 (2002). 143 North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101, 1110 (2015); Douglas v. Noble, 261 U.S. 165, 167 (1923); Graves v. Minnesota, 272 U.S. 425, 427 (1926); Jacobson v. Massachusetts, 197 U.S. 11, 24–25 (1905); “Since colonial times, the regulation of professions has been seen as a state activity in the United States.” Milton Heumann, et al., Prescribing Justice: The Law and No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 65 state’s sovereignty is protected by the principles of federalism under the Tenth Amendment of the United States Constitution.144 But in making any distinctions, a state is also subject to the equal protection provisions of the federal constitution and the constitution of the state.145 Both California and New York had to confront a federalism issue because of a federal statute that purported to limit state authority in determining the eligibility of non- citizens for professional licensing. 146 California passed a state law the complied with the federal statute’s limits. New York asserted its authority to regulate occupations according to its state constitutional, legislative, and administrative structure. New York’s regulations also had to satisfy equal protection as they made distinctions among categories of non- citizens. Since California’s statute afforded eligibility for professional licensing without regard to immigration category, an equal protection issue was not raised. A. Federalism Both California and New York confronted a federal statute, 8 U.S.C. § 1621, which purported to restrict the ability of states to afford professional licensing to non- citizens. Section 1621 is part of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”). Congress enacted PRWORA in 1996. PRWORA was a reform initiative designed to change means-tested government welfare. 147 Title IV of PRWORA, which includes section 1621, addresses welfare benefits for aliens.148 The goals of Politics of Discipline for Physician Felony Offenders, 17 B.U. PUB. INT. L.J. 1, 5 (2007). 144 See New York v. United States, 505 U.S. 144 (1992); North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101 (2015). 145 See, e.g., Aliessa v. Novello, 96 N.Y.2d 418, 424–25 (2001). 146 8 U.S.C. § 1621 (2012). 147 Aliessa v. Novello, 96 N.Y.2d 418, 424–25 (2001). 148 8 U.S.C. § 1611 (2012). 66 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 this title, as stated in the statute, were to promote self- sufficiency of aliens, and to discourage aliens from immigrating to the United States to receive welfare.149 The statute was focused on limiting means-tested welfare benefits and promoting economic self-sufficiency, 150 not on preventing access to work and licenses. 151 None of the related Congressional reports mention professional licensing.152 Yet, buried within the statute’s definition of a state public benefit is reference to a professional license “provided by an agency of a State or local government or by appropriated funds of a State or local government.”153 The legislative reports do not explain why state professional licenses, which would promote self-sufficiency, are included. Section 1621 attempts to impose federal limitations on state-only, fully state-financed, benefits, 154 thus raising issues of state sovereignty over areas that are within a state’s province. Section (a) provides that a non-citizen is not eligible for state professional licensing unless the non-citizen is a “qualified alien,” a nonimmigrant, or an alien who is paroled into the United States for less than one year. 155 149 8 U.S.C. § 1601 (2012). 150 “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes . . . It continues to be the immigration policy of the United States that . . . aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities . . . .” 8 U.S.C. § 1601(1) (2012). 151 110 Stat. 2105–2355; See In re Garcia, 315 P.3d 117, 125–26 (Cal. 2014). 152 See H.R. REP. No. 104-651, at 6 (1996), reprinted in 1996 U.S.C.C.A.N. 2183, 2187; H.R. REP. 104–651, at 1445 (1996), reprinted in 1996 U.S.C.C.A.N. 2183, 2504. 153 8 USC § 1621(c) (2012); Subsection (c) defines, in relevant part, State or local benefits as, “any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government.” 154 Aliessa v. Novello, 96 N.Y.2d at 426. 155 8 U.S.C. § 1621(a) (2012). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 67 Thus, section (a) purports to allow states to afford professional licensing to some non-citizens who only have limited short term federal permission to be in the country, such as those on visitors’ visas, and those with parole for less than a year, and to some nonimmigrants, such as visitors, who have no authorization to work. Section 1621 (d), however, conveys recognition of state authority. Section (d) is entitled, “State authority to provide for eligibility of illegal aliens for State and local public benefits.” It states: 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.156 This section demonstrates that while Congress suggested limiting professional licensing access for some aliens, it recognized that each State had the authority to make its own decisions about the inclusion of non-citizens, even those designated as “illegal.” However, the statute appears to erroneously assume that all non-citizens residing in the country under federal permission or acquiescence are mentioned in section (a). But, section (a) does not include all non-citizens who are employment authorized pursuant to federal statute and regulation or whose presence in the country has either have federal permission or acquiescence. There are several categories of non-citizens that are not included in section (a) who have permission or acquiescence to be in the country through statute, regulation or administrative directives or 156 8 U.S.C. § 1621(d) (2012). 68 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 practice.157 Further, there are numerous categories of non- citizens that are not included in section (a) who are afforded employment authorization through regulation.158 Section (d) therefore has to be interpreted to recognize state authority to afford licensing to categories of non-citizens in the country pursuant to federal permission or acquiescence that are not included in section (a) in addition to those designated as “illegal” or “not lawfully present.” Otherwise, Congress would be purporting to give states authority to allow professional licenses to “illegal” aliens, but not to all those non-citizens who reside in the state through federal permission or acquiescence. Section 1621(d) therefore appears to be the operative provision that indicates the Congressional objective of allowing state professional licensing to non-citizens who both have and do not have federal authorization to reside in a state, despite the limits of section (a). However, section (d) significantly constrains and coerces states by requiring that they regulate professional licensing, an area of traditional state authority, only through legislation, and only by legislation that is passed after a certain date, and that has particular language.159 California responded to this federal statute and exercised its state authority. But it did so by enacting a state statute that complied with (d). The California statute specifically states that it is enacted pursuant to subsection (d) of Section 1621 of Title 8 of the United States Code.160 The New York Board of Regents and Department of Education responded to section 1621 by maintaining the authority over licensing established under state law. They 157 Supra, Part II. E. 2. PRUCOL, Permanently Residing Under Color of Law. 158 8 C.F.R. § 274a.12(c). 159 8 USC § 1621(d) (2012). 160 Cal. Bus. & Prof. Code § 135.5(a). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 69 asserted New York’s sovereignty over licensing as a traditional area left to the states. They implemented the New York legislative authority and administrative process over licensing and teacher certification. Through the Regents and the Department of Education, New York State authorized licensing through regulation. In doing so, the Regents and the Department asserted state sanctioned administrative authority. The Department asserted the Board’s statutory authority to adopt regulations regarding licensure and teacher certification under state law.161 Under New York State law the Board of Regents has been granted broad authority to supervise admission to the professions.162 The Commissioner of Education has broad statutory authority to administer admission to the professions 163 and to adopt relevant regulations subject to Board of Regents approval.164 Further, the Commissioner of Education has explicit state statutory authority to adopt regulations regarding teacher certification for non-citizens.165 The Department also pointed to the reasoning of a New York court decision regarding bar membership.166 In the Vargas case, the Second Department found that a reading of 1621 (d) that required state legislation as the sole mechanism to opt out of the restrictions imposed by 1621 (a) unconstitutionally infringed on New York’s sovereign authority under the Tenth Amendment to the United States Constitution.167 The court held that the processes through 161 N.Y. EDUC. LAW §§ 3001, 3003, (McKinney 2015) 6501, 6506 (McKinney 2016). 162 N.Y. EDUC. LAW §§ Law 207, (McKinney 2009) 6506 (McKinney 2016). 163 N.Y. EDUC. LAW § 6507 (McKinney 2016). 164 N.Y. EDUC. LAW § 207 (McKinney 2009). 165 N.Y. EDUC. LAW § 3001(3) (McKinney 2015). 166 Matter of Vargas, 131 A.D. 3d 4 (App. Div. 2nd 2015). 167 Memorandum to Board of Regents Professional Practice Committee, Higher Education Committee, May 9, 2016, http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 70 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 which a state choose to exercise the authority granted by federal legislation is not a legitimate concern of the federal government.168 The Vargas court relied on United States Supreme Court decisions to establish the ability of states to structure their governmental decision-making processes as they see fit. It stated, “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”169 Further, the court noted that the Supreme Court has affirmed that Congress may not “simply commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”170 The Vargas court found that the New York judicial branch of government had authority over bar membership and determined that Mr. Vargas, a DACA recipient, was eligible for admission to practice law in New York. Although in a different context, the sovereign control of states over professional licensing is additionally supported by the reasoning in the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.171 In that case, the Supreme Court reaffirmed the long-standing sovereign authority of states over the regulation of professional licensing and practice, 172 stating 168 Matter of Vargas, 131 A.D. 3d 4, 24 (App. Div. 2nd 2015). 169 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct 2566, 2602 (2012), citing New York v. United States, 505 U.S. 144, 162 (1992). 170 New York v. United States, 505 U.S. 144, 161 (1992). 171 North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101, 1110 (2015). 172 See Douglas v. Noble, 261 U.S. 165, 167 (1923); Graves v. Minnesota, 272 U.S. 425, 427 (1926); Jacobson v. Massachusetts, 197 U.S. 11, 24–25 (1905); Milton Heumann, et al., Prescribing Justice: The Law and Politics of Discipline for Physician Felony Offenders, 17 B.U. PUB. INT. L.J. 1, 5 (2007). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 71 that professional licensing is “an undoubted exercise of state sovereign authority.”173 The federal law involved was the Sherman Antitrust Act. As the Court explained, the antitrust law has been interpreted to honor state sovereignty and exempt state professional licensing requirements when the requirements were the result of a clear state policy accompanied by active state supervision. The Court recognized the import of state sovereignty in this area by noting that even a federal law with essential national economic objectives could not burden the States’ power to regulate.174 Despite the national import of the federal antitrust laws, the Supreme Court stated that the federal laws could not be interpreted to trump state-imposed anticompetitive standards and conduct regarding licensing, as that would undermine the federalism principle of the United States Constitution.175 According to the Court, state agency action in professional licensing is an exercise of state sovereign power when a state has articulated a clear policy and provides active supervision.176 The Court recognized that a state is entitled to its sovereign decisions regarding professional licensing despite federal law when a state supervisor who is not an active market participant reviews 173 North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. at 1110. 174 The court stated “Federal antitrust law is a central safeguard for the Nation’s free market structures. In this regard, it is ‘as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.’” 135 S.Ct. at 1109. 175 Id. at 1110. 176 Id. In North Carolina State Board of Dental Examiners, the Court upheld the FTC’s antitrust challenge because active market participants, i.e., licensed dentists, whose actions were not subject to state supervision, dominated this dental board. The Board had declared teeth whitening to be the practice of dentistry and had issued cease and desist letters to non-dentist teeth whiteners without any state agent’s review, rule or regulation. 72 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 the substance of decisions and has the power to veto or modify the decision to ensure they accord with state law and policy.177 Both the New York and California systems have multiple layers of active state supervision. In California, the Department of Consumers Affairs and its Boards provide extensive and active state supervision. In New York, active state supervision is through the Board of Regents and the Department of Education and its Boards. California did not have to confront the state sovereignty issue because its legislation complied with the federal statute. New York confronted the issue because it chose an administrative rather than legislative path. New York’s sovereign authority allowed it to do so. The New York State Board of Regents is a governmental entity established by the New York State Constitution.178 The New York State Legislature designates members of the Board of Regents.179 The Regents have special authority over a combination of state education policy, educational institutions and professional licensing.180 New York actively supervises professional licensing. Under the guidance of the New York State Board of Regents, the Education Department administers and regulates the professions through its Office of the Professions,181 which is assisted by a State Board 182 for each profession. 183 Applicants are examined for educational qualifications, 177 Id. at 1115–17. 178 New York State Constitution, Article XI, § 2. (McKinney 2006) 179 N.Y. EDUC. LAW § 202 (McKinney 2009); see also New York State Education Department, About the Board of Regents, http://www.regents.nysed.gov/about. 180 N.Y. EDUC. LAW §§ 201, 207 (McKinney 2009), 6506 (McKinney 2016). 181 Id. 182 New York Education Department, State Boards for the Professions, http://www.op.nysed.gov/boards/. 183 N.Y. EDUC. LAW, Title VIII (McKinney 2016). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 73 required testing and character and fitness according to the regulations set by the Rules of the Board of Regents and the Regulations of the Commissioner of Education.184 Further, the Board of Regents has enacted rules, policies and disciplinary procedures for professional misconduct.185 Therefore, in New York, state agency action in professional licensing is an exercise of the state’s sovereign power. The structure of the New York’s governing systems involves state supervisors who are not active market participants, who review the substance of decisions, and who have the power to veto or modify decisions to ensure they accord with state law and policy. New York State has chosen through its constitution and legislature to establish government entities with authority over an interrelated combination of education, educational institutions and professional licensing. Under the principles of federalism, the federal government cannot undermine the state’s decision-making process by coercing or commandeering the Board of Regents and Department of Education structure and authority by imposing federal licensing criteria. There is more reason not to impose federal restrictions based on 8 U.S.C. § 1621 than to not impose antitrust restrictions. Unlike the Sherman Act’s strong national antitrust policy, section 1621 does not set forth a uniform national policy. In Aliessa v. Novello,186 the New 184 Id.; see also New York State Education Department, Regulations of the Commissioner of Education, http://www.op.nysed.gov/title8/opregs.htm; New York State Education Department, Rules of the Board of Regents, http://www.op.nysed.gov/title8/oprules.htm. 185 Id. at parts 29 and 31; N.Y. EDUC. LAW §§ 6507, 6508, 6509 (McKinney 2016); New York State Education Department, New York’s Professional Misconduct Enforcement System, http://www.op.nysed.gov/opd/. 186 Aliessa v. Novello, 96 N.Y.2d 418 (2001). 74 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 York Court of Appeals found that section 1621 and other sections of the PRWORA did not reflect a uniform policy, but, rather, “potentially wide variation based on localized or idiosyncratic concepts . . . .”187 The court in Vargas similarly found that in light of the opt-out provision of 1621(d), the federal statute does not constitute a comprehensive ban on state action.188 New York’s assertion of its state sovereign control over the state’s established process for professional licensing opens the door for other states to consider the licensing of non-citizens pursuant to their particular state’s structure. This approach frees a state from a federal attempt to control the process and timing of state criteria for professional licensing. B. Equal Protection In promulgating its new rules, the New York Department of Education and the Regents considered that restrictions on licensing non-citizens could violate equal protection.189 California did not address this issue because it passed legislation that treated all applying for licensing equally regardless of citizenship or immigration status.190 Both the New York Court of Appeals 191 and the Second Circuit192 found that New York State’s discrimination among categories of non-citizens violates equal protection 187 Id. at 435. 188 Matter of Vargas, 131 A.D. 3d at 23. 189 Memorandum to Board of Regents Professional Practice Committee, Higher Education Committee, May 9, 2016, http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 190 CAL. BUS. & PROF. CODE § 135.5 (West 2012). 191 Aliessa v. Novello, 96 N.Y.2d 418 (2001). 192 Dandamudi v. Tisch, 686 F.3d 66 (2012) (citing Graham v. Richardson, 403 U.S. 365, 372 (1971)) (holding that aliens are considered a suspect class and applying strict scrutiny to find a New York state statute that prohibited employment authorized aliens from working as pharmacists unconstitutional). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 75 unless justified by a compelling state interest with regard to Medicaid and professional licensing.193 A compelling state interest was not found in either case for distinctions among categories of non-citizens. However, with regard to public school teachers, the United States Supreme Court found that a state requirement of citizenship could be justified only by a reasonable relationship to a legitimate government purpose because teaching was a governmental function.194 The New York Court of Appeals found that strict scrutiny applies to state laws affecting non-citizens of whom federal immigration officials are aware but are not deporting.195 In Aliessa v. Novello196 the New York Court of Appeals concluded that a New York statute that afforded Medicaid to certain categories of non-citizens in the United States with the knowledge of federal immigration authorities, but not to others, violated the Equal Protection Clauses of the United States and New York State Constitutions. The Court of Appeals analyzed the equal protection claim by applying strict scrutiny, thereby requiring that the statute further a compelling state interest by the least restrictive means.197 In Aliessa, New York State argued that the state statute was constitutional in that it did only what the federal statute authorized it to do with regard to federal immigration policy. The court rejected this assertion and 193 In this conclusion, both the Court of Appeals and the Second Circuit significantly relied on the Supreme Court’s decision and analysis in Graham v. Richardson, 403 U.S. 365, 382 (1971). For a discussion of other cases rejecting or upholding restrictions on access to occupations based on immigration status, see generally Jennesa Calvo-Friedman, The Uncertain Terrain of State Occupational Licensing Laws for Noncitizens: A Preemption Analysis, 102 GEO. L.J. 1597 (2014). 194 Ambach v. Norwick, 441 U.S. 68 (1979). 195 Aliessa, 96 N.Y.2d at 430. The non-citizens included those in various categories that met the criteria for PRUCOL, permanently residing under color of law. Id at 422 n.2. 196 Id. at 418. 197 Id. 76 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 stated, “Given our system of separation of powers, a lawmaking body may not legislatively declare that a statute meets constitutional criteria.” 198 The court held that a federal statute cannot constitutionally authorize New York to determine the extent to which it will discriminate against non-citizens. Quoting Graham v. Richardson,199 the Court stated, “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”200 The New York Court of Appeals found that the federal law upon which the state relied did not constitute a uniform federal policy to distinguish among aliens. 201 The court stated, “[i]n the name of national immigration policy, [title IV of PRWORA including section 1621] impermissibly authorizes each State to decide whether to disqualify many otherwise eligible aliens from State Medicaid.” 202 In the court’s decision, categories of non-citizens that are not listed under section 1621(a) were included among those unconstitutionally denied state benefits.203 In Dandamudi v. Tisch, 204 the Second Circuit held unconstitutional a New York statute that restricted professional licenses to only citizens or legal permanent residents. The Second Circuit determined that discriminating among categories of employment-authorized aliens was not supported by any compelling state interest and therefore violated equal protection. 205 The statute’s restrictions were challenged by non-citizens in temporary 198 Id. at 432, n.14. 199 Graham v. Richardson, 403 U.S. 365, 382 (1971). 200 Aliessa, 96 N.Y.2d at 434. Some Courts in other states agreed with Aliessa’s analysis; some did not. See Stephen Loffredo & Helen Hershkoff, TOUGH TIMES AND WEAK REVIEW: THE 2008 ECONOMIC MELTDOWN AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS IN US STATE COURTS 234 (Aoife Nolan, ed., Cambridge Univ. Press, 2014). 201 Aliessa, 96 N.Y.2d at 426, 435, citing 8 USC § 1621(d). 202 Id. at 436. 203 Id. at 422 n.2. 204 Dandamudi, 686 F.3d at 66. 205 Id. at 70. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 77 immigration categories including H–1B206 and TN Canadians who sought pharmacist licenses.207 Non-citizens in the H category are classified under the provision of the immigration law that defines nonimmigrants.208 However, those non-citizens in the TN category are not included in this definition.209 The TN category is established pursuant to the North American Free Trade Agreement (“NAFTA”).210 The Second Circuit applied an equal protection analysis under the Fourteenth Amendment to the United States Constitution. The court stated, “(t)here is no question that the Fourteenth Amendment applies to all aliens.”211 It determined that discrimination against non-citizens who were allowed to reside and work in the United States temporarily was subject to strict scrutiny and that the New York statute was not narrowly tailored to further a compelling government interest.212 In doing so, the Second Circuit disagreed with a decision of the Fifth Circuit that 206 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2017) (stating that H–1B visas may be given to aliens who come “[T]emporarily to the United States to perform services . . . in a specialty occupation.”). 207 Dandamudi, 686 F.3d at 71 n.6 (noting that “Similar provisions of the N.Y. EDUC. LAW preclude non-Legal Permanent Resident aliens from other professions.”). 208 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2017). 209 8 U.S.C. § 1101(a)(15) (2017). 210 Dandamudi, 686 F.3d at 70 (citing 8 C.F.R. § 214.6(a)). 211 Id. at 72 (citing Plyler v. Doe, 457 U.S. 202, 215 (1982)); see also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). 212 Dandamudi, 686 F.3d at 80. The court also held that the New York state law was preempted by federal immigration law and unconstitutional under the Supremacy Clause. The state statute stood as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress (i.e. providing work capacity to non-citizens) by imposing an additional burden not sanctioned by Congress; see also Dingemans v. Bd. of Bar Examiners, 568 A.2d 354 (Vt. 1989) (bar practice rule that denied law license based on alienage was preempted because it imposed additional burdens not contemplated by the federal immigration regulatory scheme). See Jennesa Calvo-Friedman, The Uncertain Terrain of State Occupational Licensing Laws for Noncitizens: A Preemption Analysis, 102 GEO. L. J. 1597 (2014) (discussing preemption in professional licensing for non-citizens). 78 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 had applied a rational relationship test to distinctions among categories of non-citizens and upheld Louisiana’s requirement that an individual had to be a citizen or legal permanent resident for admission to its bar.213 The Second Circuit responded to New York State’s asserted interest in protecting against the transience of non- citizens who were not permanent residents. The court stated that citizenship and permanent resident status does not guarantee that a professional will remain in the state or the country or have the necessary skill for the profession or have available funds in case of malpractice.214 In the court’s view, there are other ways to limit a danger to the public of transient professionals, such as requiring malpractice insurance.215 Further, the Second Circuit rejected the argument that federal law contemplates allowing states to deny eligibility for licenses based on non-citizen category. The court stated that the federal law just recognizes that states have a legitimate interest in ensuring that a professional license applicant has the necessary educational and experiential qualifications for that profession. However, the state’s acceptable police power over licensing cannot “morph under the Supremacy Clause into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status.”216 The Second Circuit did not mention 8 U.S.C. § 1621 in its analysis. The court did not need to do so because, as stated by the Supreme Court, “Congress does not have the power to authorize the individual States to violate the Equal 213 LeClerc v. Webb, 419 F.3d 405, 415 (5th Cir. 2005), reh’g en banc denied, 444 F.3d 428 (2006), cert. denied, 551 U.S. 1158 (2007). 214 Dandamudi, 686 F.3d at 79. 215 Id. (citing Flores de Otero, 426 U.S. 572, 606 (1976)). 216 Dandamudi, 686 F.3d at 80 (citing Adusumelli v. Steiner, 740 F.Supp.2d 582, 600 (S.D.N.Y. 2010)). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 79 Protection Clause.”217 Under the reasoning in Dandamudi, the limitations in § 1621 violate equal protection as to discrimination among employment-authorized non-citizens. The Immigration and Nationality Act (“INA”) gives the executive the authority to authorize employment in the United States of non-citizens who are specifically authorized to be employed by the INA, and, additionally, to other non- citizens.218 Employment authorization affords non-citizens authority to work in the United States for employers in the United States. The federal regulation affords employment authorization to a number of classifications of non-citizens, some within a status designation in the INA, and some otherwise authorized.219 Specifically, the Second Circuit held that denying licenses to non-citizens in the TN category violated equal protection.220 The TN category is established pursuant to NAFTA 221 and affords work authorization. 222 The TN category is not included in § 1621(a) because TN is not included in 8 U.S.C. § 1101(a)(15), the section that defines nonimmigrants.223 Thus, the holding in Dandamudi applies to non-citizens with employment authorization who would be barred from professional licensing by 1621. The reasoning of both the Second Circuit and the New York Court of Appeals support the conclusion that New York State cannot discriminate against categories non-citizens by asserting that some federal law requires it. Discrimination against these non-citizens by New York State is subject to strict scrutiny analysis and violates the Equal Protection Clauses of the New York and the United States Constitution unless justified by a compelling state interest. 217 Graham, 403 U.S. at 382. See also Aliessa, 96 N.Y.2d at 434. 218 8 U.S.C. § 1324a(h)(3)(B) (2012). 219 8 C.F.R. § 274a.12. 220 Dandamudi, 686 F.3d at 66. 221 Dandamudi, 686 F.3d at 70 (citing 8 C.F.R. § 214.6(a)). 222 United States Citizenship and Immigration Services, TN NAFTA Professionals, https://www.uscis.gov/working-united- states/temporary-workers/tn-nafta-professionals. 223 8 U.S.C. § 1101(a)(15) (2017). 80 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 However, even under the more minimal criteria, the rational relationship test, discrimination against non- citizens residing in the country pursuant to administrative discretion would violate equal protection. In Arizona Dream Act Coalition v. Brewer, 224 a panel of the Ninth Circuit determined that a preliminary injunction could be granted against Arizona’s policy of discrimination among non-citizens by denying drivers’ licenses to DACA holders who had Employment Authorization Documents while affording them to other non-citizens with Employment Authorization Documents. The court stated the distinction was “likely to fail even rational basis review” and further, “[w]e discern no rational relationship between Defendants’ policy and a legitimate state interest.”225 The District Court then entered a permanent injunction on preemption grounds,226 which was upheld by the Ninth Circuit.227 After the denial of a petition for a re-hearing en banc, that Ninth Circuit opinion was amended. 228 In the amended decision the Ninth Circuit stated, “Arizona’s disparate treatment of DACA recipients may well violate the Equal Protection Clause,” and that the defendants attempted to distinguish among categories of non-citizens with Employment Authorization Documents “in a way that does not amount to any relevant difference.” Yet the court decided to affirm the District Court’s decision on grounds of preemption, not equal protection.229 Equal protection concerns were relevant in New York, because prior to the new regulations, the New York 224 757 F.3d 1053 (9th Cir. 2014). 225 Id. at 1065. 226 Arizona Dream Act Coalition v. Brewer, 81 F.Supp.3d 795 (D. Ariz. 2015). 227 Arizona Dream Act Coalition v. Brewer, 818 F.3d 901 (9th Cir. 2016). 228 Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017). 229 Id. A petition for writ of certiorari was filed, Brewer v. Arizona Dream Act Coalition, 2017 WL 1192142. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 81 Department of Education had administratively imposed limitations on professional licensing for non-citizens based on the category distinctions made by 8 U.S.C. § 1621(a), 230 thereby including non-citizens in some categories while excluding other non-citizens in similarly situated categories. These distinctions were not supported by a compelling state interest and were irrational. The distinctions allowed professional licensing to certain non-immigrants with short- term permission to be in the United States and no employment authorization, while denying licenses to those with employment authorization and long-term presence in the state. For example, licensing was afforded to certain non-immigrants such as those with H or E visas231 but not to other non-citizens in comparable immigration categories that also allow non-citizens’ presence and authorized employment in the United States. These additional categories include the TN category, Temporary Protected Status (TPS),232 DACA, and non-citizens under the Convention Against Torture.233 These are all categories that provide temporary permission to work and be in the United States. Further, the distinctions irrationally allowed licensing to short-term non- immigrants such as those with visitors’ visas 234 while excluding non-citizens with years-long presence from eligibility for licenses, such as non-citizens in categories that are designated as PRUCOL. The new New York professional licensing criteria reflects the equal protection decisions in the New York Court of Appeals and the Second Circuit to the extent that 230 See Memorandum to Bd. of Regents Prof’l Practice ,Comm., Higher Educ. Comm. (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 231 8 U.S.C. § 1101(a)(15)(E) (2012). Those with E visas are in the country pursuant to various treaties. 232 8 U.S.C. § 1254a (2012); see also U.S. Customs and Immigration Services (October 17, 2017), http://www.uscis.gov/humanitarian/temporary-protected-status-deferred- enforced-departure/temporary-protected-status. 233 112 Stat. 2681–822 (1998). 234 8 U.S.C. § 1101(a)(15)(B) (2012). 82 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 licensing is now available to those non-citizens who are not unlawfully present, including those with DACA and those who meet PRUCOL criteria. However, the Department did not accept that non-citizens should be afforded the opportunity to be licensed if they attended public higher education in New York with in-state tuition.235 There does not appear to be even a rational basis for denying professional licensing to those whose education the state supports through its in-state tuition at public universities. New York State provides for in-state tuition for higher education for its high school graduate non-citizens236 without regard to immigration category, including education for the professions the state licenses. No reason was presented for preventing those non-citizens educated with in-state tuition from professional licensing. The state provides resources to educate non-citizens for professions, but then does not allow them to be licensed in New York for those very same professions, thus depriving the state of the economic and social benefits of their educations. The Department also rejected the assertion that the regulations should not impose any restrictions based in immigration status.237 Even with regard to non-citizens who do not have a sanctioned presence, there must be, at least, a legitimate rationale for the discrimination.238 The New York State legislature has specifically not imposed any non-citizen category restrictions on licensing for thirty-nine 235 See Memorandum to Bd. of Regents Prof’l Practice Comm., Higher Educ. Comm. (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 236 N.Y.EDUC.LAW §§ 355(2)(h)(8); 6206(7)(a), (a-1); 6301(5). See Lauren A. DiMartino, The “Free College” Illusion: How State Tuition Support Programs are Widening the Opportunity Gap, 25 GEO. J. on POVERTY L. & POL’Y (forthcoming Jan. 2018), for a discussion and critique of financial aid provided for students for higher education including non- citizens. 237 See Memorandum to Bd. of Regents Prof’l Practice Comm., Higher Educ. Comm. (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 238 Plyler v. Doe, 457 U.S. 202 (1982). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 83 professions. 239 No state rationale for administratively imposing restrictions on licensing was presented. It is presumed from the language of the regulation affording licensing eligibility to those “not unlawfully present” that the regulations were drawing a distinction between non-citizens with federal acquiescence in their presence in the country and those non-citizens with none. But even for totally undocumented non-citizens, equal protection requires at least a rational relationship to a legitimate articulated state purpose.240 V. COMMENTS FROM THE NEW YORK REGULATORY PROCESS Comments made in the New York regulatory process give insight into the issues underlying licensing of non- citizens.241 A number of the comments addressed the socio- economic impact of allowing licensing to non-citizen populations, as did positions presented in support of the California legislation.242 Individuals, educators, university programs, New York City agencies and the Fiscal Policy Institute made comments in support of New York’s proposed regulations.243 Not for profit organizations such as Latino Justice, the Asian American Legal Defense Fund and the New York Immigration Coalition commented.244 Some of the comments in support of the proposed regulations addressed 239 See Appendix 2. 240 Plyler, 457 U.S. 202. 241 For a review of the comments made and the Department of Education’s response, see Douglas E. Lentivech & John L. D’Agati, Assessment of Public Comment Attachment B, THE STATE EDUCATION DEPARTMENT (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 242 Id. 243 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6, N.Y. Pub.Off. §87 (McKinney 2015). They are on file with the author. The author submitted a comment in support of the proposed regulations. 244 Id. 84 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 the legal issues discussed above.245 Many other comments made in support of the New York regulations addressed the social and economic benefits of allowing non-citizens to be licensed and certified as teachers.246 The comments made in opposition predominately focused on a concern about licensing for the members of military families and some general opposition to non-citizens characterized as “illegal.”247 Other comments urged that the state would be best served if state licensing and certification requirements focused only on competency qualifications that protected the public health, safety and welfare and did not impose any restrictions based on non-citizen status.248 A. Comments in Support A number of comments focused on the benefits to New York communities of allowing otherwise eligible non-citizens to be licensed. Comments noted that New York State has a significant foreign-born population.249 As of 2014, 22.6 % of the New York population was foreign born, with a diverse population from all regions of the world. Non-citizens comprised 45.9% of the foreign-born New York population, over two million people. 250 For example, a comment by several New York City offices,251 (New York City Comment) 245 Id. For example, the New York Civil Liberties Union, Latino Justice PRLDEF, and the Asian American Legal Defense and Education Fund made comments on legal issues. See also Lentivech & John L. D’Agati, supra note 248 at 19–25. 246 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 247 Id. 248 Id. 249 Id. 250 Migration Policy Institute, State Immigration Date Profiles, New York, http://www.migrationpolicy.org/data/state- profiles/state/demographics/NY (last visited Oct. 22, 2017). 251 Nisha Agarwal, Carmen Fariña, Mary T. Bassett, Christopher Neale, & W. Cyrus Garrett, New York City Mayor’s Office of Immigrant Affairs, Department of Education, Department of Health, Office of No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 85 supported the regulations because they would assist the economic vitality of the city and state, increase economic opportunity for New York residents, and increase the number and diversity of people engaged in vital professions such as education and health care. Individuals and other entities made similar comments.252 Several comments focused on the regulations’ promotion of the state’s economic interests.253 It was noted that the state has a fiscal interest in assuring that its residents’ skills and talents be put to their best use and that potential economic capacity should not be wasted. Licensed professionals have higher incomes and contribute to the state’s economy through tax revenues and general economic spending.254 Further, as New York allows in-state college tuition for its high school graduates without regard to immigration status, allowing non-citizens to enter the occupations for which they are educated effectively uses those educational resources to the benefit of the state. 255 Moreover, the comments stated that the amendments would increase economic opportunity for New York’s immigrant populations, which would allow them to better support themselves and their families.256 Assuring that New York’s non-citizen population can contribute to New York’s economy and be integrated into New York communities are important objectives for the State.257 Workforce Development and Young Men’s Initiative, http://www1.nyc.gov/assets/immigrants/downloads/pdf/comment_bdofregen tslicensing_final.pdf (last visited Oct. 23, 2017). 252 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 253 Id. 254 Id. 255 Id. 256 Id. 257 Id. The position on economic contribution and integration is supported by the State’s Office of New Americans. Office for New Americans, http://www.newamericans.ny.gov/about/about.html (last 86 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 A number of comments from organizations and individuals addressed the state’s growing need for health service professionals and stated that allowing qualified non- citizens to enter those fields will help fulfill that need.258 As examples, the New York City Comment stated that state labor projections indicated increasing demand for many licensed professions, especially those in medical fields.259 A comment from the Icahn School of Medicine at Mount Sinai pointed to projections of physician shortages. 260 An individual comment cited reports of shortages of nurses, social workers and primary care physicians.261 An analysis by the Fiscal Policy Institute demonstrated how immigrants matter in the licensed professions across the state as they are disproportionately represented in a number of these occupations including those in the health fields.262 visited Nov. 20, 2017); Office for New Americans, http://www.newamericans.ny.gov/about/governor.html (last visited Nov. 20, 2017). 258 Id. This is additionally supported by information that reveals that DACA recipients are increasingly applying to and being accepted in medical school. Over fifty medical schools consider applicants who are DACA recipients. In 2016, 113 DACAs applied through the American Medical College Application Service. Sixty-five DACA recipients who applied for admission from 2014 to 2016 matriculated at MD-granting medical schools. Nakae Sunny et al, Considerations for Residency Programs Regarding Accepting Undocumented Students Who Are DACA Recipients, ACAD. MED. 1 (2017) available at http://journals.lww.com/academicmedicine/Abstract/publishahead/Conside rations_for_Residency Programs_Regarding.98199.aspx. 259 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law and are on file with the author. 260 Id. 261 Id. 262 Id. Additionally, one study reported a growing need for health care professionals in the United States and the significant role that the foreign-born play in meeting this need. See Szilvia Altorjai & Jeanne Batalova, Immigrant Health-Care Workers in the United States, MIGRATION POLICY INSTITUTE (June 28, 2017), available at http://www.migrationpolicy.org/article/immigrant-health-care-workers- united-states. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 87 Many comments focused on New York’s current need for bilingual and culturally responsive teachers and health professionals.263 Because of New York’s significant foreign- born population, commentators stated it was important that more individuals in the teaching and medical professions in New York have cultural and language capacities that reflect the diverse communities in the state.264 Some pointed to the shortage of qualified bilingual teachers and professionals. For example, Advocates for Children of New York stated that the shortage of bilingual psychologists, social workers, and speech, physical and occupational therapists made it difficult for children with disabilities to receive an appropriate education.265 Others pointed to the need for professionals who could provide culturally responsive services. 266 Furthermore, the comments stated that enhancing diversity is also advantageous to members of the teaching and other professions by providing for engagement with multiple perspectives. 267 Allowing non-citizens to be licensed as professionals and certified as teachers helps achieve these needs and goals. A number of commentators focused on the positive effect of the amendments on non-citizen student populations 263 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 264 Id. 265 E-mail from Abja Midha, Project Director, Advocates for Children of New York, to Peg Rivers, Director of Operations, New York State Education Department (Apr. 13, 2016), available at http://www.advocatesforchildren.org/sites/default/files/on_page/comments_ licensing_citizenship_reqs_41316.pdf?pt=1. 266 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 267 Id. 88 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 in New York.268 They noted that inclusive measures have brought hope to non-citizen youth and encouraged them to stay in school and pursue higher education and professions. The inability to obtain licenses for the professions for which they work hard to be educated has been a barrier for them.269 It has discouraged them from pursuing the professions for which they have capacity and ambition.270 The amendments provide young non-citizens with hope and encouragement to stay in school, meet their potential and maximize their achievements. Individual non-citizens who would benefit from the amendments also chose to comment, illustrating their reasons for support. A number were in school or about to enter school to study to be doctors, nurses or therapists.271 They had come to New York as children, graduated from high school in New York, succeeded in public universities in New York, and volunteered in community based programs.272 Their comments stated that they viewed their professional choice as a means of contributing to the communities and state in which they were raised.273 B. Comments in Opposition Many of the comments in opposition to the proposed regulations in New York focused on a concern about 268 Id. 269 Id. 270 These comments are supported by the findings in National UnDACAmented Research Project. Roberto G. Gonzales et al., DACA at Year Three: Challenges and Opportunities in Assessing Higher Education and Employment, National UnDACAmented Research Project (2016), available at http://immigrationpolicy.org/sites/default/files/docs/daca_at_year_three.pdf. 271 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 272 Id. 273 Id. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 89 difficulties faced by military spouses in obtaining New York licenses when they relocated to New York.274 The argument made was that the state should not afford licensing to non- citizens when there were barriers for military spouses. 275 However, the issue involved for military spouses was different in kind from the issue faced by non-citizens. Non- citizens were excluded from applying for licenses despite their relevant education and other qualifications that met New York standards. Military spouses who were licensed in other states were not prevented from applying for New York licenses, but they had to demonstrate that they met New York’s education and other qualifications. For some, this was a time-consuming process. This issue was resolved by a state statute, effective in 2017,276 that provided for expedited initial applications, reduction in application fees, and temporary practice permits for military spouses who had licenses in other states with standards substantially equivalent to New York State standards.277 These adverse comments failed to recognize that the proposed, and now final, regulations assist some military families by allowing their non-citizen members to be licensed for the professions for which they were otherwise qualified under New York’s requirements. Significant numbers of non-citizens serve in the United States Military and there 274 Lentivech & John L. D’Agati, supra note 10 at 26. 275 The proposed regulations were criticized because at the time the Board of Regents had not changed competency requirements for military spouses or automatically accepted their licenses in other states as a basis for New York licenses. Press Release, Terrence Murphy, Murphy tells Regents to Put Military Personnel, Families, Before Illegal Immigrants (Mar. 12, 2016) available at https://www.nysenate.gov/newsroom/press-releases/terrence- murphy/murphy-tells-regents-put-military-personnel-families-illegal. 276 N.Y. EDUC. LAW § 6501(2) (McKinney 2016). 277 New York Office of the Professions, Military Spouses Relocated to New York State-Expedited Licensing Services, http://www.op.nysed.gov/prof/militaryspouse.htm (last visited Oct. 23, 2017). 90 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 are non-citizen members of military families. 278 In recognition of their service, special policies apply to the citizenship and immigration categories of members of the military and military families. Military family members may be eligible for parole in place or deferred action granted by the USCIS, United States Citizenship and Immigration Services.279 This affords renewable permission to be in the United States and eligibility for work authorization. 280 Therefore, this is a non-citizen category analogous to DACA that would be recognized under the New York regulations as eligible for licensing or certification. These military spouses, like any other citizens or non-citizens, would have to meet New York’s qualifications for licensing. The other comments against the regulations complained that “illegal” aliens should not be allowed to be teachers or be licensed in New York. However, the regulations required that non-citizens had to be “not unlawfully present” to be licensed or certified, thereby excluding those who were “illegal.”281 C. Comments Urging No State Restrictions Based in Non-Citizen Category Some comments urged that New York, like California, should focus only on requirements related to the competency qualifications for licensing or certification. The comments 278 Jeanne Batalova, Immigrants in the U.S. Armed Forces, Migration Policy Institute, (May 15, 2008) http://www.migrationpolicy.org/article/immigrants-us-armed-forces/. 279 U.S. Citizenship and Immigration Services, Discretionary Options for Military Members, Enlistees and Their Families, https://www.uscis.gov/military/discretionary-options-military-members- enlistees-and-their-families (last visited Oct. 23, 2017); U.S. Citizenship and Immigration Services, Adjudicator's Field Manual, Chapter 21 Family-based Petitions and Applications, 21.1(c) https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0- 3481/0-0-0-3501.html#0-0-0-385 (last visited Oct. 23, 2017). 280 Id. 281 Lentivech & John L. D’Agati, supra note 248 at 28–29. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 91 stated the reasons summarized as follows. The state has the police power authority to protect the health, safety and welfare of the state’s residence and the expertise in the requirements for professional licensing to best achieve that goal. Congress affords states the choice of not having to make determinations based on immigration status by providing the state the option to choose to allow even totally unauthorized aliens to be licensed.282 The comments noted this option allows a state to focus on what is within the state’s expertise and authority, the competency requirements for licensing. It leaves to the federal immigration authorities their expertise in implementing and enforcing the immigration law. By doing so the state does not put any imprimatur on the legality under immigration law of a person’s presence in the state. It merely recognizes that such a judgment and determination is in the control of the federal government.283 Further, the comments argued Congress made the judgment not to impose penalties on non-citizens who work without authorization, but only on the employers who hire non-citizens who do not have authorization to work.284 It is unlawful for an employer to hire an alien without employment authorization for employment in the United States.285 Employers who violate this pay a civil penalty,286 and may be subject to criminal penalties if there is “a pattern or practice” of such violation. 287 However, as the U.S. Supreme Court recognized, there are no criminal penalties for employees who engage in unauthorized work. 288 In 282 8 U.S.C. § 1621(d) (2012). 283 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 284 Id. 285 Id. See also 8 U.S.C. § 1324a(a)(1)(A) (2012). 286 Id. See also 8 U.S.C. § 1324a(e)(4) (2012). 287 Id. See also 8 U.S.C. § 1324a(f)(1) (2012). 288 Id. 92 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Arizona v. United States, the Court struck down as unconstitutional an Arizona statute that made it a state misdemeanor for an unauthorized alien to knowingly apply for, solicit, or perform work as an employee. 289 Because Congress had made a deliberate choice to not penalize work without authorization, a state could not criminalize it. 290 Additionally, those non-citizens who engage in sole proprietorships, partnerships or corporate structures are not engaging in employment.291 A person holding a professional license, who establishes a business entity or performs services as an independent contractor, is not engaged in “employment” as he does not have an employer.292 If a state does not impose restrictions based in immigration status, state interests are protected by an existing New York law, which requires the provision of a social security number293 or federal taxpayer identification294 289 132 S. Ct. 2492, 2503 (2012); In doing so, the Court stated: “The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable,” (citing U.S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981). 290 Id. 291 Patel v. INS, 811 F.2d 377 (7th Cir. 1987), see also Bhakta v. INS, 667 F.2d 771 (9th Cir. 1981) (holding that the INS cannot deem a non-citizen’s management of his business enterprise to be “unauthorized employment” when considering his application for an adjustment of status). 292 8 C.F.R. § 274a.1(g); Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013); 8 C.F.R. § 274a.1(f), (h), (j); Geoffrey Heeren, The Immigrant Right to Work, 31 GEO. IMMIGR. L.J. 243 (2017). 293 Applicants for employment related social security numbers must provide indicia of employment authorization. Social Security Administration, Social Security Numbers for Noncitizens, (July 2017),” http://www.ssa.gov/pubs/EN-05-10096.pdf. 294 New York State Tax Law requires license applicants to provide a social security number or federal employer identification number (or the No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 93 by license applicants. Individuals with professional licenses through the New York Department of Education may be employees, or practice their professions as sole proprietors, in partnerships or certain corporate structures.295 They also may apply for an alternative taxpayer identification number.296 Therefore, the state’s interest in tax payments, and identification of those it licenses is protected. Additionally, the comments asserted that removing any immigration related criteria from licensing would allow the state to better reap the benefit of its in-state tuition policy.297 New York State provides in-state tuition to its non- citizen New York high school graduates without regard to any immigration category.298 It benefits the state to allow those educated with in-state tuition to practice the professions for which they have been educated. In response to these comments, New York again reiterated that it made the choice to provide licensing opportunities to a broad category of those not unlawfully present.299 VI. INSIGHTS FROM CALIFORNIA’S AND NEW YORK’S APPROACHES reason the person does not have the numbers.) N.Y. Tax § 5(2) (McKinney 2014). 295 The New York State Department of Education allows professionals with the licenses/certificates at issue to set up these corporate entities. New York State Department of Education, Corporate Entities for Professional Practice, (Oct. 12, 2016) http://www.op.nysed.gov/corp/. 296 Internal Revenue Service, Employer Identification Number: Understanding Your EIN, (2014), available at https://www.irs.gov/pub/irs- pdf/p1635.pdf. 297 The summary of the comments in this Article is based on a review of the comments that were obtained pursuant to The New York Freedom of Information Law, New York Public Officers Law, Article 6 and are on file with the author. 298 N.Y.EDUC.LAW §§ 355(2)(h)(8) (McKinney 2009); 6206(7)(a), (a-1); 6301(5) (McKinney 2016). 299 Lentivech & John L. D’Agati, supra note 248. 94 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 The insights from the California and New York approaches are useful for other states, members of the public and organizations, even though the specific process of setting licensing criteria in each state differs. As matter of law, regulation and policy, California and New York removed restrictions on non-citizens from professional licensing, broadening the ability of their non-citizen populations to gain professional licensing and thereby contribute to the state. While what might be most appropriate in one state may differ from another, the California and New York experiences provide information about the benefits and detriments of various choices. California chose a legislative approach, while New York addressed the issue through administrative regulation. Both states faced a federal statute that purported to limit state control over a traditional area of state authority. California chose legislation designed to specifically comport with the requisites of the federal statute that required state legislation passed at a particular time and with particular language. 300 It therefore did not have to assert its state sovereignty under the Tenth Amendment over state licensing as did New York. 301 New York’s regulatory approach required that New York insist on its state sovereignty to control licensing criteria through the process set by the state Constitution, the state legislature and the relevant administrative entities. 302 New York’s approach allowed decision-making by the administrative and state authorities with expertise in the area and responsibility for implementation.303 Both California and New York allowed for some public input into the decision about eligibility for licenses. 300 Supra PART I, A, The California Legislation. 301 Supra PART III, A. Federalism. 302 Id. 303 Supra PART II. B. The New York System of Professional Licensing and Teacher Certification. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 95 Organizations in California had a voice in support or opposition to the legislation.304 But, New York’s notice and comment regulatory process gave opportunity for comments by a wide range of individuals, experts, organizations, educational institutions, and local governments. 305 Moreover, this process required that the governmental entities making the decision had to consider and respond to the comments from various members of the public about the proposal. 306 In New York, this resulted in multiple perspectives on the role of non-citizens in the state’s economy and professional and community endeavors, as well as the legality of the proposal.307 California and New York both made comprehensive choices about the professions affected within the context of their state’s system for regulating professions and teachers. California’s law affected a broader number of occupations because the California Department of Consumer Affairs had authority over a large number of occupations.308 The New York system divides occupational licensing among different agencies.309 Only the professions and teachers are regulated by the Board of Regents and Education Department, which also have authority over higher education institutions.310 304 Supra PART I. D. History of the Legislation and Positions in Favor and Opposed. 305 Supra PART IV. COMMENTS FROM THE NEW YORK REGULATORY PROCESS. 306 The New York Board of Regents and Department of Education had to review and respond to comments under the state’s Administrative Procedure Act, N.Y. A.P.A. § 202 5(b) (McKinney 2017). See Douglas E. Lentivech & John L. D’Agati, Assessment of Public Comment Attachment B, THE STATE EDUCATION DEPARTMENT (May 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 307 Supra PART IV, COMMENTS FROM THE NEW YORK REGULATORY PROCESS. 308 Supra, PART 1. The California System of Professional Licensing and Teacher Certification. 309 Supra PART II, B. The New York System of Professional Licensing and Teacher Certification. 310 Id. 96 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Both California and New York significantly broadened the categories of non-citizens eligible for professional licensing and teacher certification. But California removed all non-citizen category restrictions. 311 California’s choice to remove restrictions based in non-citizen status left determinations about immigration law enforcement to the federal government. This approach freed the relevant state administrative agency to focus only on the competency requirements the state deems necessary to protect the health and safety of its population. California also thereby avoided the intricacies of and changes in immigration law, policy, and practice. New York allowed licensing and teacher certification to those who can demonstrate that their presence had federal knowledge and acquiescence or permission. 312 New York focused on the integration of the non-citizen population residing in the state through federal action or inaction. The New York position requires an interpretation of immigration categories through the state standard of PRUCOL.313 New York also avoided the criticism that it was affording licensing to those who are completely undocumented. But California was not deterred by that critique, and its Supreme Court, in the context of bar membership, clarified that lack of an immigration status alone does not make a person unqualified for an occupation regulated by the state.314 Both states viewed the expansion of non-citizens’ eligibility for professions and teaching as a significant economic gain for the state. The recorded positions on the California legislation supported this, 315 as did the wide 311 CAL. BUS. & PROF. CODE § 135.5 (West, Westlaw through Ch. 467 of 2017 Reg.Sess). 312 Supra, Part II, E. The Non-citizen Categories Eligible for Licensing and Certification. 313 Supra, Part II, E., 2. PRUCOL, Permanently Residing Under Color of Law. 314 In re Garcia, 315 P.3d at 130. 315 Supra notes 51–55. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 97 variety comments in New York.316 The positive effects on a state’s economy of allowing licensing for DACA recipients was also behind Nebraska state legislation that allowed DACA recipients to apply for occupational licenses passed over the state Governor’s veto.317 Legislators and Chambers of Commerce saw the bill as assisting in building the state’s needed workforce.318 These positions are generally supported by studies on the economic impact of immigration.319 There has been some disagreement about the economic impact of immigration in the United States. However, most of the disagreement is about whether lower skilled migrants contribute sufficiently to the tax base or adversely impact opportunities for United States citizens with limited educations. 320 The economic advantages of more highly educated and skilled non-citizens are generally acknowledged as they increase the tax base and add to the development of the economy by contributing their skills and expending their resources.321 316 Supra Part IV. A. Comments in Support. 317 Don Walton & Zach Pluhacek, Senators Override Ricketts’ Veto On Young Immigrant Licensure Bill, Lincoln Journal Star, Apr. 20, 2016 available at http://journalstar.com/legislature/senators-override-ricketts- veto-on-young-immigrant-licensure-bill/article_a2d6d276-cde0-5d26-a893- dd472c55dc44.html. 318 Id. 319 Francine D. Blau & Christopher Mackie, The Economic and Fiscal Consequences of Immigration (2017) available at https://www.nap.edu/read/23550/chapter/1#xx; James P. Smith & Barry Edmonston, The New Americans: Economics, Demographic, and Fiscal Effects of Immigration (1997) available at https://www.nap.edu/read/5779/chapter/2#3. 320 Francine D. Blau & Christopher Mackie, The Economic and Fiscal Consequences of Immigration (2017) available at https://www.nap.edu/read/23550/chapter/1#xx. 321 Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute, January 18, 2017, https://www.cato.org/blog/economic-fiscal-impact-repealing-daca; American Immigration Council, Value Added: Immigrants Create Jobs and Businesses, Boost Wages of Native-Born Workers, (Jan. 1, 2012) https://www.americanimmigrationcouncil.org/research/value-added- immigrants-create-jobs-and-businesses-boost-wages-native-born-workers. 98 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Both states enhanced the value of the education of their non-citizen residents and gained economic and social benefits from non-citizens who use their educations in the employment for which they are qualified. The benefits especially apply to the growing need for health professionals, and specialized need for teachers and other helping professionals who have language and cultural competency.322 However, California is in a better position to gain the benefits from its provision of in-state tuition to non-citizens since it allows licensing without regard to immigration status for its non-citizen graduates. Both states also seriously considered the contributions, needs and integration of their non-citizen populations in providing for greater diversity in their licensed professionals and teachers. 323 This consideration comports with the public service and protection justification for the state function of professional licensing.324 VII. CONCLUSION The issues confronted by the choices made by California and New York provide important information to other states, their organizations and residents in considering how to best promote the public health and safety goals of state regulation of professions and how to effectively allow members of their non-citizen populations to contribute to their communities and states. Both California and New York demonstrated the advantages of expanding non-citizen eligibility for professional licensing and teacher certification in a comprehensive manner. They decided that the comprehensive inclusion of non-citizens in a state’s professions and teaching provides the state and its communities and residents with significant socio-economic 322 Supra Part IV. A. Comments in Support. 323 Id. 324 Supra notes 178–179. No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 99 advantage. Further, the New York approach establishes that state sovereignty precludes federal control of a state’s process or choice of state governmental entity responsible for licensing criteria. Therefore, a state need not comply with the federal statutory requirement that licensing for categories of non-citizens has to be set only by a state statue enacted after August 22, 1996. A state may set the eligibility of non-citizens for licenses by the state’s established process, including administrative regulation or a state statute enacted before August 22, 1996. 100 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 VIII. APPENDIX 1–CALIFORNIA LICENSING AND TEACHER CERTIFICATION CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS325 1. Accountancy326 Business and Professions Code §§ 5000 – 5158 327 Title 16, Division 1, California Code of Regulations §§ 1 – 99.1 328 Reciprocity (BPC §§ 5096 – 5096.21) 329 2. Acupuncture 330 Sections 4925 to 4979 of the California Business and Professions Code331 Title 16, sections 1399.400 to 1399.489.2 of the California Code of Regulations332 3. Arbitration Certification 333 Sections 472 to 472.5 of the California Business and Professions Code334 325 See generally CAL. DEP’T OF CONSUMER AFFAIRS, 2016 ANNUAL REPORT (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf (providing background on the function of the California Department of Consumer Affairs). DCA issues licenses, certificates, registrations and permits in over 250 business and professional categories through 39 regulatory entities comprised of boards, bureaus, committees, a program, and a commission (boards and bureaus). These 39 entities set and enforce minimum qualifications for the professions and vocations they regulate, which include nearly all of California’s healthcare fields. California Department of Consumer Affairs, supra note 26, at 3. 326 The California Board of Accountancy handles licensing, regulatory, and disciplinary functions of accountants. 327 CAL. BUS. & PROF. CODE §§ 5000–5158 (West 2017). 328 CAL. CODE REGS. tit. 16, §§ 1–99.1 (2017). 329 CAL. BUS. & PROF. CODE §§ 5096–5096.21 (West 2017). 330 Acupuncture Board issues license to practice acupuncture. 331 CAL. BUS. & PROF. CODE §§ 4925–4979 (West 2017). 332 CAL. CODE REGS. tit. 16, §§ 1399.400–1399.489.2 (2017). 333 An arbiter is a “person or persons within an arbitration program who actually decide disputes.” CAL. CODE REGS. tit. 16, § 3396.1(d). 334 CAL. BUS. & PROF. CODE §§ 472–472.5 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 101 Sections 2101 to 2801 of the California Commercial Code335 Sections 43204 to 43205.5 of the California Health and Safety Code336 Sections 1790 to 1795.8 of the Song-Beverly Consumer Warranty Act (Lemon Law)337 Sections 11700 to 11909 of the California Vehicle Code338 Title 16, sections 3396.1 to 3399.6 of the California Code of Regulations339 4. Architects 340 Sections 5500 to 5683 of the California Business and Professions Code341 Title 16, sections 100 to 160 of the California Code of Regulations342 Title 16, sections 2602 to 2680 of the California Code of Regulations343 Title 16, section 121 of the California Code of Regulations (reciprocity)344) 5. Athletic Commission 345 335 CAL. COM. CODE §§ 2101-2801 (West 2017). 336 CAL. HEALTH & SAFETY CODE §§ 43204–43205.5 (West 2017). 337 Song-Beverly Consumer Warranty Act (Lemon Law), CAL. CIV. CODE §§ 1790–1795.8 (West 2017). 338 CAL. VEH. CODE §§ 11700-11909 (West 2017). 339 CAL. CODE REGS. tit. 16, §§ 3396.1–3399.6 (2017). 340 Just for architects. “An architect licensed by the California state board of architectural examiners may practice the profession of landscape architecture as defined in the Business & Professions Code when such work is one phase of a larger contract or as an entire project.” CAL. BUS. & PROF. CODE § 5500.1 (West 2017). 341 CAL. BUS. & PROF. CODE §§ 5500–5683 (West 2017). 342 CAL. CODE REGS. tit. 16, §§ 100–160 (2017). 343 CAL. CODE REGS. tit. 16, §§ 2602–2680 (2017). 344 CAL. CODE REGS. tit. 16, § 121 (West 2017). 345 The Commission controls: professional and amateur boxing, professional and amateur kickboxing, all forms and combinations of forms of full contact martial arts contests, including mixed martial arts, and matches or exhibitions conducted, held, or given within this state. 102 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Sections 18600 to 18887 of the California Business and Professions Code346 Title 4, sections 201 to 829 of the California Code of Regulations347 6. Automotive Repair 348 Sections 9880 to 9889.68 of the California Business and Professions Code349 Sections 44000 to 44126 of the California Health and Safety Code350 Title 16, sections 3300 to 3395.5 of the California Code of Regulations351 7. Barber / Cosmetology 352 Sections 7301 to 7426.5 of the California Business and Professions Code353 Title 16, sections 901 to 999 of the California Code of Regulations354 Section 7331 of the California Business and Professions Code (reciprocity)355) No event shall take place without the prior approval of the commission. No person shall engage in the promotion of, or participate in, a boxing or martial arts contest, match, or exhibition without a license, and except in accordance with this chapter and the rules adopted hereunder. CAL. BUS. & PROF. CODE § 18640 (West). 346 CAL. BUS. & PROF. CODE §§ 18600–18887 (West 2017). 347 CAL. CODE REGS. tit. 16, §§ 201–829 (2017). 348 Specifies automotive repair dealers. CAL. BUS. & PROF. CODE § 9880 (West 2017). 349 CAL. BUS. & PROF. CODE §§ 9880–9889.68 (West 2017). 350 CAL. HEALTH & SAFETY CODE § 44000–44126 (West 2017). 351 CAL. CODE REGS. tit. 16, §§ 3300–3395.5 (2017). 352 Covers “hair, skin, nail care, and electrolysis” CAL. BUS. & PROF. CODE § 7301 (West 2017). Also specifies “barbering, cosmetology, or electrolysis.” CAL. BUS. & PROF. CODE § 7317 (West 2017). 353 CAL. BUS. & PROF. CODE §§ 7301–7426.5 (West 2017). 354 CAL. CODE REGS. tit. 16, §§ 901–999 (2017). 355 CAL. BUS. & PROF. CODE § 7331 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 103 8. Behavioral Sciences 356 Sections 4980 to 4999.129 of the California Business and Professions Code357 Title 16, sections 1800 to 1889.3 of the California Code of Regulations358 9. Cemetery / Funeral 359 Sections 7600 to 7746 of the California Business and Professions Code360 Title 16, sections 1200 to 1291 of the California Code of Regulations361 Title 16, Division 23, California Code of Regulations §§ 2300 – 2390 362 Health and Safety Codes §§ 7000 – 9677 363 Health and Safety Codes §§ 102100 – 103800 364 Government Code §§ 27460 – 27530 365 356 Applies to marriage and family therapy marriage as defined by Section 4980.02. Includes educational psychology. CAL. BUS. & PROF. CODE § 4989.14 (West). The Department of Consumer Affairs determines the “licensure of marriage and family therapists, clinical social workers, professional clinical counselors, and educational psychologists.” CAL. BUS. & PROF. CODE § 4990.18 (West). Applies to clinical social workers. CAL. BUS. & PROF. CODE § 4991.1 (West). Applies to health care professionals providing telephone medical advice services. CAL. BUS. & PROF. CODE § 4999 (West). 357 CAL. BUS. & PROF. CODE §§ 4980 – 4999.129 (West 2017). 358 CAL. CODE REGS. tit. 16, §§ 1800–1889.3 (2017). 359 Applies to cemetery brokers (CAL. BUS. & PROF. CODE § 7651 (West 2017)); cemetery salespeople (CAL. BUS. & PROF. CODE § 7651.3 (West 2017)); cemetery brokerage licenses to a cemetery brokerage corporation (CAL. BUS. & PROF. CODE § 7652 (West 2017)); cemetery managers (CAL. BUS. & PROF. CODE § 7653.6 (West 2017)); cremated remains disposers (CAL. BUS. & PROF. CODE § 7672.1 (West 2017)). 360 CAL. BUS. & PROF. CODE §§ 7600–7746 (West 2017). 361 CAL. CODE REGS. tit. 16, §§ 1200–1291 (2017). 362 Cal. Code Regs. tit. 16, §§ 2300 – 2390 (West 2017). 363 Cal. Health & Safety Code § 7000 – 9677 (West 2017). 364 Cal. Health & Safety Code § 102100 – 103800 (West 2017). 365 Cal. Gov’t Code §§ 27460 – 27530 (West 2017). 104 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Welfare and Institutions Code §§ 11150 – 11160, §§ 12150 – 12156, §§ 17400 – 17410 366 10. Chiropractic Examiners 367 Business and Professions Code §§ 1000 – 1058 (Chiropractic Initiative Act) 368 Title 16, Division 4, California Code of Regulations §§ 301 – 390.6 369 Reciprocity (16 CCR § 323 370) 11. Contractors 371 Business and Professions Code §§ 7000 – 7199.7 372 Title 16, Division 8, California Code of Regulations §§ 810 – 890 373 License Requirements (§§ 7065 – 7077, 374 16 CCR § 825 375) Reciprocity (BPC § 7065.4 376) 12. Court Reporters 377 Business and Professions Code §§ 8000 – 8047 378 Title 16, Division 24, California Code of Regulations §§ 2400 – 2481 379 13. Dentistry 380 366 Cal. Welf. & Inst. Code §§ 11150 – 11160, 12150 – 12156, 17400 – 17410 (West 2017). 367 Just authorizes chiropractic examiners. 368 CAL. BUS. & PROF. CODE §§ 1000 – 1058 (West 2017). 369 Cal. Code Regs. tit. 16, §§ 301 – 390.6 (West 2017). 370 Cal. Code Regs. tit. 16, § 323 (West 2017) 371 Just authorizes contractors. 372 CAL. BUS. & PROF. CODE §§ 7000 – 7199.7 (West 2017). 373 Cal. Code Regs. tit. 16, §§ 810 – 890 (West 2017). 374 CAL. BUS. & PROF. CODE § 7065 – 7077 (West 2017). 375 Cal. Code Regs. tit. 16, § 825 (West 2017). 376 CAL. BUS. & PROF. CODE § 7065.4 (West 2017). 377 Authorizes certified shorthand reporter. CAL. BUS. & PROF. CODE § 8020 (West). 378 CAL. BUS. & PROF. CODE §§ 8000 – 8047 (West 2017). 379 Cal. Code Regs. tit. 16, §§ 2400 – 2481 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 105 Business and Professions Code §§ 1600 – 1808, §§ 1970- 1976 381 Title 16, Division 10, California Code of Regulations §§ 1000 – 1087 382 14. Dental Hygiene Business and Professions Code §§ 1900 – 1976.4 383 Title 16, Division 10, California Code of Regulations §§ 1000 – 1023.8, §§ 1067 – 1090.1, § 1107, §§ 1131 – 1132, §§ 1138 – 1144, §§ 1149 – 1153 384 15. BEARHFTI (electronic and appliance repair businesses – sale and administration of service contracts; manufacture and sale of upholstered furniture and bedding, supply dealers, custom upholsterers, bedding sanitizers, manufacture of thermal insulation products and tests for flammability and sanitation) Business and Professions Code §§ BEAR: 9800 – 9874 385 HFTI: §§ 19000 – 19221 386 Title 16, Division 27, California Code of Regulations §§ 2701 – 2775 387 Title 4, Division 3, California Code of Regulations §§ 1101 – 1383.6 388 16. Guide Dogs 389 380 Includes dentists. Also includes specific license to perform various surgeries or use specific types of anesthesia. Also includes dental hygienist. Cal. Bus. & Prof. Code § 1902.2 (West). 381 CAL. BUS. & PROF. CODE §§ 160 – 1808, 1970-1976 (West 2017). 382 Cal. Code Regs. tit. 16, §§ 1000 – 1087 (West 2017). 383 CAL. BUS. & PROF. CODE §§ 1900 – 1976.4 (West 2017). 384 Cal. Code Regs. tit. 16, §§ 1000 – 1023.8, 1067 – 1090.1, 1107, 1131–1132, 1138–1144, 1149–1153 (West 2017). 385 CAL. BUS. & PROF. CODE §§ 9800 – 9874 (West 2017). 386 CAL. BUS. & PROF. CODE §§ 19000 – 19221 (West 2017). 387 Cal. Code Regs. tit. 16, §§ 2701 – 2775 (West 2017). 388 Cal. Code Regs. tit. 16, §§ 1101 – 1383.6 (West 2017). 389 “The board shall have exclusive authority in this state to issue licenses for the instruction of persons who are blind or visually impaired in 106 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Business and Professions Code §§ 7200 – 7217390 California Civil Code §§ 54 – 55.32391 California Penal Code §§ 346 – 367g, § 600.2, and § 600.5392 California Vehicle Code § 21963393 California Food and Agriculture Code §§ 30850 – 30854 394 and §§ 31601 – 31609 395 Americans with Disabilities Act Title III – Public Accommodations (42 U.S.C. 12181) 396 Title 16, Division 22, California Code of Regulations §§ 2250 – 2295.3 397 17. Landscape Architects 398 Business and Professions Code §§ BEAR: 5500 – 5683 399 Title 16, Division 27, California Code of Regulations §§ 100 – 160 400 Title 4, Division 3, California Code of Regulations §§ 2602 – 2680 401 Reciprocity (16 CCR 2615 402) 18. Medical Board 403 the use of guide dogs and for the training of guide dogs for use by persons who are blind or visually impaired. It shall also have exclusive authority in this state to issue licenses to operate schools for the training of guide dogs and the instruction of persons who are blind or visually impaired in the use of guide dogs.” CAL. BUS. & PROF. CODE § 7200.5 (West). Also applies to owners of assistance dogs. CAL. FOOD & AGRIC. CODE §§ 30850 – 30854 (West). 390 CAL. BUS. & PROF. CODE §§ 7200 – 7217 (West 2017). 391 Cal. Civ. Code §§ 54 – 55.32 (West 2017). 392 Cal. Penal Code §§ 346 – 367g, 600.2, 600.5 (West 2017). 393 Cal. Veh. Code § 21963 (West 2017). 394 Cal. Food & Agric. Code §§ 30850 – 30854 (West 2017). 395 Cal. Food & Agric. Code §§ 31601 – 31609 (West 2017). 396 42 U.S.C. § 12181 (2017). 397 Cal. Code Regs. tit. 16, §§ 2250 – 2295.3 (West 2017). 398 Just applies to landscape architects. 399 CAL. BUS. & PROF. CODE §§ 5500 – 5683 (West 2017). 400 Cal. Code Regs. tit. 16, §§ 100 – 160 (West 2017). 401 Cal. Code Regs. tit. 16, §§ 2602 – 2680 (West 2017). 402 Cal. Code Regs. tit. 16, § 2615 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 107 Business and Professions Code §§ 2000 – 2448, §§ 2505 – 2529.5, §§ 2540 – 2569 404 Title 16, Division 13, California Code of Regulations §§ 1300 – 1379.78, §§ 1399.200 – 1399.279 405 Reciprocity (BPC §§ 2135, 2135.5 AND 2135.7 406) 19. Occupational Therapy 407 Business and Professions Code §§2570 – 2571 408 Title 16, Division 13, California Code of Regulations §§ 1300 – 1379.78, §§ 1399.200 – 1399.279 409 20. Optometry 410 Business and Professions Code §§ 2540 – 2545, §§ 2546 – 2546.10, §§ 2550 – 2569, §§ 3000 – 3167 411 Title 16, Division 15, California Code of Regulations §§ 1500 – 1581 412 403 Applies to “physician's and surgeon's certificate,” (CAL. BUS. & PROF. CODE § 2050 (West)); medical assistant, physician assistant, nurse practitioner or certified nurse-midwife (CAL. BUS. & PROF. CODE § 2069 (West). Includes osteopathic physician’s and surgeon’s certificate. CAL. BUS. & PROF. CODE § 2099.5 (West). Also includes doctor of podiatric medicine. CAL. BUS. & PROF. CODE § 2472 (West). Also includes midwives and midwife assistants. CAL. BUS. & PROF. CODE § 2507, 2516.5 (West). 404 CAL. BUS. & PROF. CODE §§ 2000 – 2448, 2505 – 2529.5, 2540 – 2569 (West 2017). 405 Cal. Code Regs. tit. 16, §§ 1300 – 1379.78, 1399.200 – 1399.279 (West 2017). 406 CAL. BUS. & PROF. CODE §§ 2135, 2135.5, 2135.7 (West 2017). 407 Applies to OT and OTAs. 408 CAL. BUS. & PROF. CODE §§ 2000 – 2448, 2505 – 2529.5, 2540 – 2569 (West 2017). 409 Cal. Code Regs. tit. 16, §§ 1300 – 1379.78, 1399.200 – 1399.279 (West 2017). 410 Applies to optometrists and related additional certifications related to optometry. 411 CAL. BUS. & PROF. CODE §§ 2540 – 2545, 2546 – 2546.10, 2550 – 2569, 3000 – 3167 (West 2017). 412 Cal. Code Regs. tit. 16, §§ 1500 – 1581 (West 2017). 108 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Title 16, Division 13.5, California Code of Regulations § 1399 413 Reciprocity (BPC §§ 3057 414) 21. Osteopathic 415 Business and Professions Code §§ 2000 – 2459.7 416 Title 16, Division 16, California Code of Regulations §§ 1600 – 1697 417 Reciprocity (BPC § 2153.5 418) 22. Pharmacy 419 Business and Professions Code §§ 4000 – 4426 420 Title 16, Division 17, California Code of Regulations §§ 1702 – 1793.8 421 23. Physical Therapy 422 Business and Professions Code §§ 2600 – 2696 423 Title 16, Division 13.2, California Code of Regulations §§ 1398 – 1399.99.4 424 Reciprocity (BPC 2636.5 425) Graduate Practice – Physical Therapist and Physical Therapist Assistance “License Applicant” Statute (§ 2639) 426 413 Cal. Code Regs. tit. 16, § 1399 (West 2017). 414 CAL. BUS. & PROF. CODE § 3057 (West 2017). 415 Applies to osteopathic physician or surgeon. 416 CAL. BUS. & PROF. CODE §§ 2000 – 2459.7 (West 2017). 417 Cal. Code Regs. tit. 16, §§ 1600 – 1697 (West 2017). 418 CAL. BUS. & PROF. CODE § 2153.5 (West 2017). 419 Applies to pharmacists (CAL. BUS. & PROF. CODE § 4200 (West)), pharmacy technicians (CAL. BUS. & PROF. CODE § 4202 (West)), and intern pharmacists (CAL. BUS. & PROF. CODE §§ 4208 – 4209 (West)). 420 CAL. BUS. & PROF. CODE §§ 4000 – 4426 (West 2017). 421 Cal. Code Regs. tit. 16, §§ 1702 – 1793.8 (West 2017). 422 Applies to physical therapists and physical therapist assistants. CAL. BUS. & PROF. CODE § 2636 (West). 423 CAL. BUS. & PROF. CODE §§ 2600 – 2696 (West 2017). 424 Cal. Code Regs. tit. 16, §§ 1398 – 1399.99.4 (West 2017). 425 CAL. BUS. & PROF. CODE § 2636.5 (West 2017). 426 Cal. Code Regs. Tit. 21, § 2639 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 109 24. Physician Assistants 427 Business and Professions Code §§ 3500 – 3546 428 Title 16, Division 13.8, California Code of Regulations §§ 1399 – 1399.99.4 429 25. Podiatric Doctors 430 Business and Professions Code §§ 2460 – 2499.8 431 Title 16, Division 13.9, California Code of Regulations §§ 1399.650 – 1399.725 432 Reciprocity (BPC § 2488 433) 26. Private Postsecondary Education 434 California Education Code §§ 94800 – 94950 435 Title 5, Division 7.5, California Code of Regulations §§ 70000 – 76240 436 27. BPELSG (engineers, land surveyors, geologists, geophysicists) Business and Professions Code §§ 6700 – 6799 (Engineers) §§ 7800 – 7887 (Geologists and Geophysicists) and §§ 8700 – 8805 437 (Land Surveyors) Title 16, Division 5, California Code of Regulations §§ 400 – 476 438 (Engineers / Surveyors) 427 Applies to physician assistants only. 428 CAL. BUS. & PROF. CODE §§ 3500 – 3546 (West 2017). 429 Cal. Code Regs. tit. 16, §§ 1399 – 1399.99.4 (West 2017). 430 Applies only to podiatric doctors and surgeons. 431 CAL. BUS. & PROF. CODE §§ 2460 – 2499.8 (West 2017). 432 Cal. Code Regs. tit. 16, §§ 1399.650 – 1399.725 (West 2017). 433 CAL. BUS. & PROF. CODE § 2488 (West 2017). 434 Applies to institutions offering educational programs designed to lead to positions requiring licensure. Cal. Educ. Code §§ 94904 – 94905, 94929.5(2) (West). 435 Cal. Educ. Code §§ 94800 – 94950 (West 2017). 436 Cal. Code Regs. tit. 16, §§ 70000 – 76240 (West 2017). 437 CAL. BUS. & PROF. CODE §§ 6700 – 6799, 7800 – 7887, 8700 – 8805 (West 2017). 438 Cal. Code Regs. tit. 16, §§ 400 – 476 (West 2017). 110 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Title 16, Division 29, California Code of Regulations §§ 3000 – 3067 439 (Geologists) Reciprocity (BPC § 6759, § 7847, AND § 8748 440) 28. Fiduciaries 441 Business and Professions Code §§ 6500 – 6592 442 Title 16, Division 41, California Code of Regulations §§ 4400 – 4622 443 29. Psychology 444 Business and Professions Code §§ 2900 – 2999 445 Title 16, Division 13.6, California Code of Regulations §§ 1380 – 1397.71 446 Reciprocity Temporary practice by out of state licenses; waiver of examination requirement (BPC § 2946 447) Temporary practice by licensees of other state or foreign country (BPC § 2912 448) 30. Real Estate 449 Business and Professions Code §§ 10000 – 11288 450 Title 10, Division 6, California Code of Regulations §§ 2705 – 3109 451 31. Real Estate Appraisers 452 439 Cal. Code Regs. tit. 16, §§ 3000 – 3067 (West 2017). 440 CAL. BUS. & PROF. CODE §§ 6759, 7847, 8748 (West 2017). 441 Applies to licensed professional fiduciaries. 442 CAL. BUS. & PROF. CODE §§ 6500 – 6592 (West 2017). 443 Cal. Code Regs. tit. 16, §§ 4400 – 4622 (West 2017). 444 Applies to psychologists and those who practice psychotherapy. 445 CAL. BUS. & PROF. CODE §§ 2900 – 2999 (West 2017). 446 Cal. Code Regs. tit. 16, §§ 1380 – 1397.71 (West 2017). 447 CAL. BUS. & PROF. CODE § 2946 (West 2017). 448 CAL. BUS. & PROF. CODE § 2912 (West 2017). 449 Applies to real estate broker licensees. CAL. BUS. & PROF. CODE §§ 10150 (West). Also applies to real estate salespeople. CAL. BUS. & PROF. CODE §§ 10151 (West). 450 CAL. BUS. & PROF. CODE §§ 10000 – 11288 (West 2017). 451 Cal. Code Regs. tit. 16, §§ 2705 – 3109 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 111 Business and Professions Code §§ 11300 – 11423 453 Title 10, Division 6.5, California Code of Regulations §§ 3500 – 3780 Federal: Title 11, United States Code §§ 1101 – 1126 454 Title 15, United States Code §§ 1639e 455 Title 12, United States Code §§ 225.61 – 225.67 456 Title 12, United States Code §§ 1222.20 – 1222.26 457 Reciprocity (10 CCR 3569 458) 32. Registered Nursing 459 Business and Professions Code §§ 2700 – 2838.4 460 Title 16, Division 14, California Code of Regulations §§ 1402 – 1495.4 461 Reciprocity: Business and Professions Code § 2732.1(b) 462 33. Respiratory Care 463 Business and Professions Code §§ 3700 – 3779 464 Title 16, Division 13.6, California Code of Regulations §§ 1399.300 – 1399.395 465 Reciprocity (BPC § 3735 466) 452 Applies to real estate appraisers only. 453 CAL. BUS. & PROF. CODE §§ 11300 – 11423 (West 2017). 454 11 U.S.C. §§ 1101 – 1126 (2017). 455 15 U.S.C. § 1639e (2017). 456 15 U.S.C. § 225.61 – 225.67 (2017). 457 15 U.S.C. § 1222.20 – 1222.26 (2017). 458 Cal. Code Regs. tit. 15, § 3569 (West 2017). 459 Includes midwives (Cal. Bus. & Prof. Code § 2746 (West)), Nurse Anesthetists (Cal. Bus. & Prof. Code §§ 2825 – 2833.6 (West)), nurse practitioners (Cal. Bus. & Prof. Code § 2834 – 2837 (West)), and clinical nurse specialists (Cal. Bus. & Prof. Code § 2838 – 2838.4 (West)). 460 CAL. BUS. & PROF. CODE §§ 2700 – 2838.4 (West 2017). 461 Cal. Code Regs. tit. 16, §§ 1402 – 1495.4 (West 2017). 462 CAL. BUS. & PROF. CODE § 2732.1(b) (West 2017). 463 Applies to respiratory care practitioners only. 464 CAL. BUS. & PROF. CODE §§ 3700 – 3779 (West 2017). 465 Cal. Code Regs. tit. 16, §§ 1399.300 – 1399.395 (West 2017). 466 CAL. BUS. & PROF. CODE § 3735 (West 2017). 112 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 34. Security and Investigative 467 Business and Professions Code §§ 6980 – 6980.84, §§ 7500 – 7599.75 468 Title 16, Division 7, California Code of Regulations §§ 600 – 645 469 35. Speech and Hearing 470 Business and Professions Code §§ 2530 – 2539.14 471 Title 16, Division 13.3, California Code of Regulations §§ 1399.100 – 1399.144 472 Title 16, Division 13.4, California Code of Regulations §§ 1399.150 – 1399.199.14473 36. Structural Pest 474 Business and Professions Code §§ 8500 – 8698.6 475 Title 16, Division 19, California Code of Regulations §§ 1900 – 1999.5 476 37. Veterinary Medicine 477 Business and Professions Code §§ 4800 – 4917 478 467 Applies to proprietary security officers (CAL. BUS. & PROF. CODE §§ 7574 – 7478 (West)), private patrol officer (CAL. BUS. & PROF. CODE §§ 7580 – 7588 (West)), alarm company operators (CAL. BUS. & PROF. CODE §§ 7590 – 7599.80 (West)), private investigators (CAL. BUS. & PROF. CODE §§ 7512 – 7573.5 (West)), repossessors (CAL. BUS. & PROF. CODE §§ 7500 – 7511.5 (West)), and locksmiths (CAL. BUS. & PROF. CODE §§ 6980 – 6981 (West)). 468 CAL. BUS. & PROF. CODE §§ 6980 – 6980.84, 7500 – 7599.75 (West 2017). 469 Cal. Code Regs. tit. 16, §§ 600 – 645 (West 2017). 470 Applies to speech-language pathologists and audiologists. 471 CAL. BUS. & PROF. CODE §§ 2530 – 2539.14 (West 2017). 472 Cal. Code Regs. tit. 16, §§ 1399.100 – 1399.144 (West 2017). 473 Cal. Code Regs. tit. 16, §§ 1399.150 – 1399.199.14 (West 2017). 474 Applies to pest control operators, field representatives, and applicators. CAL. BUS. & PROF. CODE § 8560 (West). 475 CAL. BUS. & PROF. CODE §§ 8500 – 8698.6 (West 2017). 476 Cal. Code Regs. tit. 16, §§ 1900 – 1999.5 (West 2017). 477 Applies to veterinarians and individuals practicing veterinary medicine. CAL. BUS. & PROF. CODE § 4828 (West). 478 CAL. BUS. & PROF. CODE §§ 4800 – 4917 (West 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 113 Title 16, Division 20, California Code of Regulations §§ 2000 – 2086.9 479 Civil Code §§ 3051, 3052, §§ 3080 – 3080.03, §§ 1834.5 – 1834.6 480 Health and Safety Code §§ 122125 – 122220 481 38. VN & PT (vocational nurses [LVNs] and psychiatric technicians [PTs]) 482 Business and Professions Code §§ 2840 – 2895.5 and §§ 4500 – 4548 483 Title 16, Division 25, California Code of Regulations §§ 2500 – 2557.3 and §§ 2560 – 2595.3 484 39. Naturopathic doctors and assistants Business and Professions Code §§ 3610 – 3686 485 Title 16, Division 25, California Code of Regulations §§ 4200 – 4268 486 Title 16, Division 13.7, California Code of Regulations § 1399.434487 CALIFORNIA COMMISSION on TEACHING CREDENTIALING 488 479 Cal. Code Regs. tit. 16, §§ 2000 – 2086.9 (West 2017). 480 Cal. Civ. Code §§ 3051, § 3052, 3080 – 3080.03, 1834.5 – 1834.6 (West 2017). 481 Cal. Health & Safety Code §§ 122125 – 122220 (West 2017). 482 Applies only to vocational nurses and psychiatric technicians. 483 CAL. BUS. & PROF. CODE §§ 2840 – 2895.5, 4500 – 4548 (West 2017). 484 Cal. Code Regs. tit. 16, §§ 2500 – 2557.3, 2560 – 2595.3 (West 2017). 485 CAL. BUS. & PROF. CODE §§ 3610 – 3686 (West 2017). 486 Cal. Code Regs. tit. 16, §§ 4200-4268, 1399.434 (West 2017). 487 Cal. Code Regs. tit. 16, § 1399.434 (West 2017). 488 California Commission on Teacher Credentialing, About the Commission, https://www.ctc.ca.gov/commission/default (last visited Jul. 15, 2017) (citing The California Commission on Teacher Credentialing serves “as a state standards board for educator preparation for the public schools of California, the licensing and credentialing of professional educators in the State, the enforcement of professional practices of 114 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 Title 2, Division 3, California Education Code §§ 489 Title 5, Division 8, California Code of Regulations §§ 80000 – 80694 490 First Time Application Form 491 educators, and the discipline of credential holders in the State of California.”). 489 Cal. Educ. Code §§ 44200 – 44409 (West 2017). 490 Cal. Code Regs. tit. 5, § 80000 – 80694 (West 2017). 491 Cal. Comm’n on Teacher Credentialing, How to Submit a Paper Application, https://www.ctc.ca.gov/credentials/submit-paper (last visited Jul. 15, 2017). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 115 IX. APPENDIX 2–N.Y. EDUC. LAW AND DEPARTMENT OF EDUCATION APPLICATIONS FOR PROFESSIONAL LICENSES FOR NON-CITIZENS NO STATUTORY LIMITATIONS BASED ON IMMIGRATION CATEGORY FOR 29 PROFESSIONS 1. Acupuncturist492 Application Form http://www.op.nysed.gov/prof/acu/acu1.pdf 2. Athletic Trainer.493 Application Form http://www.op.nysed.gov/prof/at/at1.pdf 3. Audiologist 494 Application Form http://www.op.nysed.gov/prof/slpa/sla1.pdf 4. Clinical Laboratory Technologist495 Application Form http://www.op.nysed.gov/prof/clt/clt1.pdf 5. Cytotechnologist496 Application Form http://www.op.nysed.gov/prof/clt/clt1.pdf 6. Clinical Laboratory/ Histological Technician497 Application Form http://www.op.nysed.gov/prof/clt/cyt1.pdf 7. Dental Assistant 498 Application Form http://www.op.nysed.gov/prof/dent/dent-rdfl1.pdf 8. Dietitian/Nutritionist 499 Application Form http://www.op.nysed.gov/prof/diet/diet1.pdf 492 N.Y.EDUC.LAW § 8214 (McKinney 2016). 377 N.Y.EDUC.LAW § 8355 (McKinney 2016). 378 N.Y.EDUC.LAW § 8206 (McKinney 2016). 379 N.Y.EDUC.LAW § 8605 (McKinney 2016). 380 N.Y.EDUC.LAW § 8605 (McKinney 2016). 381 N.Y.EDUC.LAW §§ 8606, 8606-a (McKinney 2016). 382 N.Y.EDUC.LAW § 6608-b (McKinney 2016). 383 N.Y.EDUC.LAW § 8004 (McKinney 2016). 116 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 9. Medical Physicist 500 Application Form http://www.op.nysed.gov/prof/medphys/mp1.pdf 10. Physician Assistant 501 Application Form http://www.op.nysed.gov/prof/med/pa1.pdf 11. Specialist Assistant 502 Application Form http://www.op.nysed.gov/prof/med/sa1.pdf 12. Mental Health Practitioner503 Application Form http://www.op.nysed.gov/prof/mhp/mft1.pdf 13. Family Therapist504 Application Form http://www.op.nysed.gov/prof/mhp/mft1.pdf 14. Creative Arts Therapist505 Application Form http://www.op.nysed.gov/prof/mhp/cat1.pdf 15. Psychoanalyst506 Application Form http://www.op.nysed.gov/prof/mhp/psyanl1.pdf 16. Registered Nurse507 Application Form http://www.op.nysed.gov/prof/nurse/nurse1.pdf 17. Licensed Practical Nurse508 Application Form http://www.op.nysed.gov/prof/nurse/nurse1.pdf 500 N.Y.EDUC.LAW § 8705 (McKinney 2016). 501 N.Y.EDUC.LAW § 6541 (McKinney 2016). 502 N.Y.EDUC.LAW § 6541 (McKinney 2016). 503 N.Y. EDUC. LAW § 8403 (McKinney 2016). 504 N.Y. EDUC. LAW § 8403 (McKinney 2016). 505 N.Y. EDUC. LAW § 8404 (McKinney 2016). 506 N.Y. EDUC. LAW § 8405 (McKinney 2016). 507 N.Y. EDUC. LAW § 6905 (McKinney 2016). 508 N.Y. EDUC. LAW § 6905 (McKinney 2016). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 117 18. Certification for Nurse Practitioners and Clinical Nurse Specialists509 Application Forms http://www.op.nysed.gov/prof/nurse/np1.pdf; http://www.op.nysed.gov/prof/nurse/cns1.pdf 19. Perfusionist permit 510 Application Form http://www.op.nysed.gov/prof/perfusion/perf5.pdf 20. Physical Therapist 511 Application Form http://www.op.nysed.gov/prof/pt/pt1.pdf 21. Physical Therapist Assistant 512 Application Form http://www.op.nysed.gov/prof/pt/pt1.pdf 22. Polysomnographic Technologist (authorization) 513 Application Form http://www.op.nysed.gov/prof/polysom/polysom1.pdf 23. Respiratory Therapist 514 Application Form http://www.op.nysed.gov/prof/rt/rt1.pdf 24. Respiratory Technician515 Application Form http://www.op.n.gov/prof/rt/rt1.pdf 25. Social Worker Master 516 Application Form http://www.op.nysed.gov/prof/sw/lmsw1.pdf 26. Clinical Social Worker517 Application Form http://www.op.nysed.gov/prof/sw/lcsw1.pdf 509 N.Y. EDUC. LAW §§ 6910, 6911 (McKinney 2016). 510 N.Y. EDUC. LAW § 8609(9) (McKinney 2016). 511 N.Y. EDUC. LAW § 6734 (McKinney 2016). 512 N.Y. EDUC. LAW § 6734 (McKinney 2016). 513 N.Y. EDUC. LAW § 8505 (McKinney 2016). 514 N.Y. EDUC. LAW § 8504 (McKinney 2016). 515 N.Y. EDUC. LAW § 8504 (McKinney 2016). 516 N.Y. EDUC. LAW § 7704 (McKinney 2016). 118 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 27. Speech Pathologist/Audiologist 518 Application Form http://www.op.nysed.gov/prof/slpa/sla1.pdf 28. Licensed Behavior Analyst519 Application Form http://www.op.nysed.gov/prof/aba/aba1.pdf 29. Certified Behavior Analyst Assistant 520 Application Form http://www.op.nysed.gov/prof/aba/aba1.pdf SPECIFIC LANGUAGE THAT CITIZENSHIP IS NOT A REQUIREMENT AND NO IMMIGRATION RELATED CRITERIA FOR 9 PROFESSIONS The statutes regarding the following professions specifically state that an individual does not need to meet any requirements as to U.S. Citizenship and do not include an immigration category requirement. 1. Interior Design521 Application Form http://www.op.nysed.gov/prof/id/intdesform1.pdf 2. Architect522 Application Form http://www.op.nysed.gov/prof/arch/arch1.pdf 3. Occupational Therapist523 Application Form http://www.op.nysed.gov/prof/ot/ot1.pdf 517 N.Y. EDUC. LAW § 7704 (McKinney 2016). 518 N.Y. EDUC. LAW § 8206 (McKinney 2016). 519 N.Y. EDUC. LAW § 8804(2) (McKinney 2016). 520 N.Y. EDUC. LAW § 8804(1) (McKinney 2016). 521 N.Y. EDUC. LAW § 8305 (McKinney 2016). 522 N.Y. EDUC. LAW § 7304 (McKinney 2016). 523 N.Y. EDUC. LAW § 7904 (McKinney 2016). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 119 4. Occupational Therapist Assistant524 Application Form http://www.op.nysed.gov/prof/ot/ot1.pdf 5. Ophthalmic Dispensing525 Application Form http://www.op.nysed.gov/prof/od/od1.pdf 6. Optometrist526 Application Form http://www.op.nysed.gov/prof/optom/opt1.pdf 7. Podiatrist527 Application Form http://www.op.nysed.gov/prof/pod/pod1.pdf 8. Psychologist528 Application Form http://www.op.nysed.gov/prof/psych/psych1.pdf 9. Certified Public Accountant529 Application Form http://www.op.nysed.gov/prof/cpa/cpa1.pdf STATUTES LIMITING LICENSES FOR 13 PROFESSIONS DECLARED UNCONSTITUTIONAL The statutory limits on non-citizen eligibility for thirteen professions was declared unconstitutional in Dandamudi v. Tisch530 1. Chiropractor.531 Application Form http://www.op.nysed.gov/prof/chiro/chiro1.pdf 2. Certified Shorthand Reporter532 Application Form http://www.op.nysed.gov/prof/csr/csr1.pdf 524 N.Y. EDUC. LAW § 7904 (McKinney 2016). 525 N.Y. EDUC. LAW § 7124 (McKinney 2016). 526 N.Y. EDUC. LAW § 7104 (McKinney 2016). 527 N.Y. EDUC. LAW § 7004 (McKinney 2016). 528 N.Y. EDUC. LAW § 7603 (McKinney 2016). 529 N.Y. EDUC. LAW § 7404 (McKinney 2016). 530 686 F. 3d 66 (2012). 531 N.Y. EDUC. LAW § 6554 (McKinney 2016). 120 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 8:1 3. Dentist533 Application Form http://www.op.nysed.gov/prof/dent/dent1.pdf 4. Dental Hygienist534 Application Form http://www.op.nysed.gov/prof/dent/dh1.pdf 5. Engineer535 Application Form http://www.op.nysed.gov/prof/pels/pe1.pdf 6. Land Surveyor536 Application Form http://www.op.nysed.gov/prof/pels/lsurv1.pdf 7. Landscape Architect537 Application Form http://www.op.nysed.gov/prof/larch/landarch1.pdf 8. Massage Therapist538 Application Form http://www.op.nysed.gov/prof/mt/mt1.pdf 9. Physician539 Application Form http://www.op.nysed.gov/prof/med/med1.pdf 10. Midwife540 Application Form http://www.op.nysed.gov/prof/midwife/mid1.pdf 11. Pharmacist 541 Application Form http://www.op.nysed.gov/prof/pharm/pharm1.pdf 532 N.Y. EDUC. LAW § 7504 (McKinney 2016). 533 N.Y. EDUC. LAW § 6604 (McKinney 2016). 534 N.Y. EDUC. LAW § 6609 (McKinney 2016). 535 N.Y. EDUC. LAW § 7206 (McKinney 2016). 536 N.Y. EDUC. LAW § 7206-a (McKinney 2016). 537 N.Y. EDUC. LAW § 7324 (McKinney 2016). 538 N.Y. EDUC. LAW § 7804 (McKinney 2016). 539 N.Y. EDUC. LAW § 6524 (McKinney 2016). 540 N.Y. EDUC. LAW § 6955 (McKinney 2016). 541 N.Y. EDUC. LAW § 6805 (McKinney 2016). No. 2:33] PROFESSIONAL LICENSING AND TEACHER CERTIFICATION 121 12. Veterinarian542 Application Form http://www.op.nysed.gov/prof/vetmed/vet1.pdf 13. Veterinary Technician 543 Application Form http://www.op.nysed.gov/prof/vetmed/vt1.pdf 542 N.Y. EDUC. LAW §§ 6704, 6711 (McKinney 2016). 543 N.Y. EDUC. LAW § 6711 (McKinney 2016).