As state allows for professional licenses, long-term national DACA solution remains elusive

April 4, 2018

It’s been a long road for the millions of individuals who were brought to the country illegally as children, and the end is not yet in sight.

Since it was first introduced in 2001, the Development, Relief, and Education for Alien Minors Act (or DREAM Act) has failed multiple times in Congress.

Even an executive action in 2012 by President Barack Obama — known as Deferred Action for Childhood Arrivals (or DACA) — failed to provide ultimate reassurance.

dreamers-numbersPresident Donald Trump in September 2017 announced a six-month deadline to end DACA unless a legislative fix was enacted. The U.S. Supreme Court effectively blocked this planned sunsetting in February.

With all this uncertainty, one thing DACA recipients won’t have to worry about anymore — in Indiana, at least — is obtaining state professional licenses. Gov. Eric Holcomb signed Senate Enrolled Act 419 on March 21, which allowed “Dreamers” to apply for professional certifications.

“I support removing impediments in state law that keep Indiana’s DACA recipients from skilling up and going to work,” Holcomb said. “Many thanks to Indiana lawmakers for taking swift action to address this issue.”

State enters the debate

If the DREAM Act had passed, it would have allowed a path for permanent residency for those who: entered the United States before their 16th birthday and have been present in the U.S. for at least five years; are of good moral character; are not inadmissible or deportable under specified grounds of the Immigration and Nationality Act; have been admitted to an institution of higher education or earned a high school or equivalent diploma; from the age of 16 and older, have never been under a final order of exclusion, deportation or removal; and are under age 35.

Without such a fix, Indiana stepped into the debate a decade after the DREAM Act first introduced.

In 2011, Sen. Mike Delph, R-Carmel, authored Senate Bill 590, which instituted various changes concerning enforcement of federal immigration laws and illegal immigration.

The original version of the bill was modeled after Arizona’s so-called “Papers Please” law and would have required police to ask for proof of citizenship or immigration status if they had a reasonable suspicion that a person is illegally in the country. Much of the original language was changed, however.

Earlier this year, the Indiana Professional Licensing Agency changed its interpretation of a state law and began withholding licenses from DACA recipients.

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Under SEA 419, Dreamers will be able to get licensed for dozens of professions including cosmetology, nursing and real estate.

Jenifer Brown practices exclusively in immigration law and serves as vice chair of Ice Miller LLC’s Labor, Employment and Immigration Practice Group. She said she applauded Holcomb’s efforts, but warned this licensing confusion is a perfect example of why states should stay out of immigration debates.

“Our federal immigration laws are extraordinarily complex,” she said. “These are the things that happen when we try to solve problems through other branches of the government. … There’s absolutely nothing the state government can or should be doing in respect to federal immigration policy, other than to the extent they have a voice with our federal elected officials.”

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H-1B visa holders

Another population besides DACA recipients who will be allowed to apply for professional licenses now in the state are foreign workers who are in the country under an H-1B visa.

The H-1B program applies to employers seeking to hire foreign workers in specialty occupations that require highly specialized knowledge and at least a bachelor’s degree or its equivalent.

Indiana University Maurer School of Law labor and employment law professor Kenneth G. Dau-Schmidt said this change would directly influence foreign students who go to school in the state hoping to get an H-1B visa upon graduation.

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“They are at the age, a lot of them, where they are going to want to be training and getting licensure,” he said. “I’m sure this is all very important to them.”

Michael Durham is an immigration attorney in the labor and employment group at Bose McKinney & Evans LLP. He said though these visa holders were lawfully present in the U.S., these foreign students would have had a hard time when they went to look for work.

“If they’re a nursing student who is graduating with a (Optional Practical Training) card and they’re looking for employment with a local hospital, they would have been restricted from getting a license,” he said.•


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