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This memorandum details the legal means by which the State of California may enact work authorization for DACA recipients in the event the program is rescinded. Using similar, previous state-level initiatives as inspiration, this memo examines the parameters constraining possible legislative action. Because work authorization is federally regulated, these constraints include preemption and supremacy clause limitations on state and local lawmaking. This means that, if DACA is rescinded, California could pass a law allowing former recipients to continue working. However, because of the Supremacy Clause, California would need permission from the federal government to implement the bill. After explaining the legal parameters of such a law, this memorandum will offer draft model legislation. Furthermore, this memo identifies and analyzes pre-existing work protections for undocumented immigrants in California and discusses how the State can better strengthen and publicize these permissions. While these protections are not solely for DACA recipients, they may provide DREAMers with enhanced opportunities to preserve their livelihoods. Essentially, although the Immigration Reform and Control Act (“IRCA”) prevents employers from hiring unauthorized non-citizen workers, its application does not necessarily extend to undocumented immigrants themselves. This leaves two methods by which unauthorized non-citizens may work in the United States: (1) in a self-employed capacity, or (2) as an independent contractor. California could strengthen these approaches by implementing certain polices, such as prohibiting inquiries into an independent contractor’s immigration status and broadening the scope of the State’s employment discrimination laws. Finally, California can better publicize these protections by collaborating with immigration interest groups to educate both employers and DACA recipients about the scope of non-citizens’ legal right to work.
DACA, Immigration, Dreamers
Immigration Law | Law
Corona, Eddie and Heitmann, Kyle, "DREAMcatcher: How California Can Protect Its DACA Recipients’ Work Authorization" (2018). Immigration Law & Policy Practicum Projects. 3.