California Law Change Could Allow Campus Work for Undocumented Students

Two state bills would allow public colleges and universities to hire undocumented students, which is currently barred by federal law.

Sather Tower at the UC Berkeley campus in Berkeley on March 25, 2022. (Martin do Nascimento/CalMatters)

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In January, the University of California Board of Regents broke the hearts of undocumented students by halting a proposal to allow them to work on campus. A few days later, David Alvarez had a plan.

The  huddled with student organizers and decided to draft a bill to compel the UC, as well as the community colleges and California State University, to do what the UC regents would not.

Federal law prohibits employers from hiring anyone who is undocumented, but Alvarez鈥檚  says California鈥檚 public colleges and universities should be exempt and allowed to hire undocumented students for on-campus jobs. The approach rests on an untested legal theory . It鈥檚 based on the argument that a pivotal federal  doesn鈥檛 apply to state agencies, including public colleges and universities.

Assemblymember , a Corona Democrat and chair of the California Latino Legislative Caucus, has introduced a  that, if passed, would be taken to CA voters in the form of a ballot measure.

Both bills are . 

鈥淲e wouldn鈥檛 have to do this if the federal government actually did their job and passed immigration reform,鈥 said Alvarez in an interview with CalMatters.   

Instead of working on-campus jobs like their peers, undocumented students must seek employment as independent contractors or find under-the-table jobs, . If Alvarez鈥檚 bill prevails, an estimated 60,000 undocumented students could benefit.

Last May, the UC Board of Regents  the plan to allow undocumented students to work. In January, the regents reversed course, voting 10 to 6 to delay any implementation by a year. , who sobbed in the public meeting space, castigated the regents and reverted to an agonizing square one in which they lacked the legal right to work.

Alvarez鈥檚 bill cleared its first hurdle in April, but it faces a  during an opaque legislative process known as , in which members of the appropriations committee decide in relative secrecy whether bills with a price tag advance or die.

A  the bill could cost California a few million dollars to implement these hiring changes and to handle the legal fees, should someone decide to sue a college or university for hiring undocumented students.  Those costs could become a large obstacle as the .

How much of an impact the bill would have on undocumented students is an open question: Most students 鈥 regardless of their immigration status 鈥 work off campus. Federal law is clear that private employers must follow the employment ban. The bills by Alvarez and Cervantes do not extend to the many other state agencies where undocumented students could work after graduation and earn competitive wages.

鈥業t is not fair鈥

For Alvarez, the bill is a continuation of California鈥檚 commitment to for undocumented students. Already the , grants and loans to these students, but they鈥檙e barred from receiving federal dollars. A campus job would allow them to cover the difference when financial aid falls short; it would help them with major expenses like housing, transportation and food.

鈥淚鈥檓 out here fighting for the right to be given the opportunity to apply to a job on campus,鈥 said Karely Amaya Rios . The 23-year-old is a graduate student at UCLA and has a pending job offer from a professor to help him write a book and teach his immigrant rights courses. Though she鈥檚 lived in the U.S. for more than 20 years, she鈥檚 undocumented and ineligible for the job. 鈥淚t is not fair,鈥 she said.

Rios  that she cobbles together enough money to cover rent and food costs by babysitting and selling clothes at a swap meet with her mother. She also receives some scholarships and stipends.

鈥淚 fear that all of you do not understand how disappointing and gut-wrenching it feels to be denied my humanity and my right to access the same opportunities as my peers,鈥 added Fatima Zeferino, an undocumented Cal State Long Beach student, at the April hearing.

颁别谤惫补苍迟别蝉鈥&苍产蝉辫; would target just the UC, a potentially necessary move because the UC is . The Legislature鈥檚 bills can rarely force the system to do something.

Still, Alvarez鈥檚 office believes the UC 鈥渨ould be bound鈥 by his bill, his district director, Lisa Schmidt, wrote in an email. She added that 鈥渆ven if it were not formally bound it would comply with the law once the Cal State and (community colleges) were doing so.鈥

Why public colleges are worried

The UC isn鈥檛 formally opposed to the bill, but its  the bill could expose UC hiring managers to civil and criminal prosecution and jeopardize the billions of dollars in federal research grants the university receives. Alvarez bristled at one objection the UC raised: that the bill as law could expose 鈥渦ndocumented students and their families to the possibility of criminal prosecution or deportation.鈥 He called that 鈥渂orderline offensive to students鈥 who already have to navigate the legal complexities of their immigration status outside of school.  

Alvarez cited his own experience as a child born in the U.S. living in fear of what would happen to his undocumented parents. They were eventually granted legal status through the same 1986 federal law that now bars undocumented residents from working. 

Hovering in plain sight is the concern that a potential Trump White House would wage an aggressive legal attack on the university. It would potentially repeat a judicial system showdown that saw the university  to end job protections for undocumented workers who came to the country when they were young. That previous legal saga involved the Obama-era Deferred Action for Childhood Arrivals (DACA) program, but federal courts  halted the federal government鈥檚 ability to accept new applications.

The UC Office of the President never appeared persuaded by the legal argument put forward by the UCLA scholars. It sought outside legal opinion, and the conclusion was that the plan wouldn鈥檛 be 鈥渓egally viable,鈥 .

UC鈥檚 April letter to legislators underscored that worry: 鈥淗owever, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support.鈥

Ahilan Arulanantham, one of the two UCLA legal scholars behind the theory that state agencies are exempt from the federal rule barring undocumented residents from working,  that no hiring manager could be prosecuted if universities began hiring undocumented students.

鈥淭he risk that people would actually be criminally prosecuted for following state law is, in my view, vanishingly small,鈥 he said then. 鈥淎nd we鈥檙e not aware of any example where people have been criminally prosecuted by the federal government for following a law that they were required to follow as a matter of the state.鈥

More likely is that the state would be sued and the matter would play out in courts, Arulanantham said. 鈥淚f the universities lost that lawsuit and they still kept trying to hire people, of course that would present a different question.鈥

The state鈥檚 attorney general would defend the campuses in those suits, Alvarez said. The press office of the attorney general wouldn鈥檛 comment on Arulanantham鈥檚 legal argument or whether the attorney general would defend the campuses in a possible suit.

Cal State has issued no position, though it reiterated another point the UC made: The bill 鈥渃ould have consequences on the federal aid the CSU and our students receive,鈥 wrote Amy Bentley-Smith, a spokesperson for Cal State. The fear isn鈥檛 unfounded. When the UC system weighed the issue, Republican Congressman Darell Issa asking that he 鈥減lease inform Congress how the system intends to refund its current federal funding, as well as provide a detailed estimate of the fiscal impact to students by foregoing future federal assistance.鈥

Can community college students benefit?

While the legal risk of the bill looms large, the impact of the legislation on undocumented students may be limited in scope. That鈥檚 because the majority of undocumented students attend community college. The Cal State system has fewer undocumented students, and the UC campuses have the least, according to  from each system. 

Yet community college students are the least likely to work on-campus jobs. When they do work, only 7% of them have a campus job, according to an analysis provided by California Student Aid Commission. The rates are higher at Cal State and UC campuses, where 16% of working students at Cal State and about half of working students at the UC are employed on campus.

Many community college students work full time in the private sector, whereas campus jobs typically restrict students to no more than 20 hours a week. The hourly limit comes from research that says . 

Over the past six years, Jerry Reyes has studied at Reedley College, just south of Fresno, though he left at various points. He鈥檚 undocumented and ineligible for DACA, which offers temporary work permits for undocumented youth. 

He worked anyway, taking a job at an agricultural packaging house, where he made around $15 an hour. They 鈥渄idn鈥檛 really ask鈥 about his immigration status, he said. 

Better jobs are hard to find, he said. 鈥淚 just ignore potential opportunities because I know they鈥檙e just going to turn me away because of my status.鈥

After a brief stint at San Francisco State, he returned to Reedley College, where he鈥檚 pursuing a new major in business administration and serving as a trustee on the community college district鈥檚 board. The position is supposed to pay $375 per month, but he said the district won鈥檛 compensate him because of his immigration status.

鈥淚t鈥檚 frustrating,鈥 Reyes said, to watch others get paid for student jobs when he does the same amount of work. He supports Alvarez鈥檚 bill but he wants a broader solution too. 鈥淎 lot of these (undocumented) students don鈥檛 work campus jobs,鈥 he said, 鈥渁nd even the jobs they take don鈥檛 pay as well.鈥

Alvarez said he鈥檇 consider future legislation to open job opportunities in other sectors too, but not before passing this legislation. 鈥淟ook, this is already a heavy lift,鈥 he said. 鈥淚t鈥檚 not going to be easy.鈥

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