VAAP testimony supporting VT H.606
(Delivered, in part, on the record 04/04/2024)
Good afternoon, Honorable Chair, Vice Chair, and members of the Senate Committee on Government Operations:
Thanks so much for welcoming me today. I am Jill Martin Diaz, my pronouns are they/them, and I am the Executive Director and supervising attorney of Vermont Asylum Assistance Project. VAAP is a newly incorporated nonprofit and long-overdue dedicated immigration legal services provider for noncitizen Vermonters. Given my ten years of practice, teaching, and supervision experience in immigration law, Chair Hardy invited me here today to share my perspective on how bill H.606 would interact with federal immigration law and impact Vermont professionals of varying immigration legal statuses. I have some preliminary thoughts to offer, having reviewed the bill and a bit of its legislative history, and also welcome your questions at any time.
The Immigration Nationality Act found at Title 8 of the US Code, and its implementing regulations at Title 8 of the CFR, permit noncitizens to apply for and be granted permission to work – also called work authorization or employment authorization – incident to their current or pending immigration status. A variety of immigration statuses give rise to eligibility for work authorization ranging from approved temporary student visas, to pending family-based green card applications, to pending or granted asylum, to forms of prosecutorial discretion granted by the Department of Homeland Security (DHS). This means work authorization is not a stand-alone immigration benefit. It must be sought in addition to seeking some overarching temporary or permanent pathway to status, which can cost thousands of dollars in government filing fees and be impossible to pursue without access to quality immigration counsel. These barriers are compounded by the federal government's recent, habitual failure to timely adjudicate applications citing resource limitations.
For millions of noncitizens in this country, the lack of a so-called Employment Authorization Document, or EAD card, from DHS also means lacking access to a social security number and government-issued photo identification. Recall that current, valid ID and a Social are often the first things a community member must produce when they want to apply to rent an apartment, enroll in school, sign their children up for services, receive health care, open a bank account, work, and yes – most notably for this Committee meeting – to start a business.
The entrepreneurship of immigrants has shaped this country's prosperous past and promises to ensure our state's economic future. In Vermont, the American Immigration Council reports that, according to the American Community Survey, there are over 30,000 immigrants comprising about 5% of the state's population. Immigrants in Vermont pay $438.5M each year in taxes and account for $1.0B in annual spending power. Contrast this data with the economic stagnation relating to Vermont's emigrating and aging native-born population, which has been top of mind for many legislators this session. For example, members of this Committee began this legislative session with a presentation by Tom Kavet, State Economist and Principal Economic Advisor, on the dispositive role that foreign-born residents will play in growing and sustaining Vermont families, workforces, and economy.
However, encouraging immigration will only go so far to sustaining the state's economy and future. Vermont will also need to ensure that entrepreneurs and skilled workers (a term of art I use reluctantly, because all work is skilled) have access to professional licensure to practice their trades, and to participate openly and safely in our economy, regardless of their immigration history or status.
Federal law allows individuals to own businesses and practice their trades as solo or group proprietors regardless of immigration history or status, so long as the individual obtains an Employer Identification Number (EIN) from the Internal Revenue Service (IRS). A person can obtain an EIN if they base their business in the United States and have a valid Tax ID number, whether it is a work-authorized Social Security Number or an Individual Taxpayer Identification Number (ITIN). The latter of which is available to people regardless of immigration status. In fact, tax law and regulations designed ITINs specifically to facilitate taxpaying by unauthorized workers, given their ubiquity. Vermont's treasured dairy industry, for example, depends on them.
At present, even if an enterprising Vermonter has incorporated their business within the bounds of federal law, they still face immigration-related barriers to entering our regulated economy, where professional licensure factors immigration status. Usually, Vermont regulators do not specifically require that an applicant for professional licensure has a certain immigration status in order to practice their trade—but they commonly require a social security number, which is effectively the same thing. As a result, business owners lacking social security numbers lack access to participating in the regulated market to chilling results.
Here's an example. Erika Johnson, Disaster Relief Attorney at Legal Services Vermont, represents low-income victims of last summer's catastrophic flooding. She describes how, routinely, the Vermonters she represents are unable to assert their claims for federal FEMA relief not for lack of eligibility, but for the shortage of licensed contractors who can provide repair estimates that the federal government will recognize. To be clear, the problem is not a contractor shortage, but a licensed contractor shortage, boxing Vermont homeowners out of federal aid and leaving them vulnerable or reliant on the state for relief. Allowing contractors to secure professional licensure with an ITIN as well as a SSN would ameliorate the issue.
For these reasons, Vermont Asylum Assistance Project supports bill H.606 because it clearly and concisely clarifies that professional licensure in Vermont is available regardless of immigration status and pursuant federal law. The bill appears narrowly tailored and effectual in its purpose and will go a long way toward stimulating economic sustainability and prosperity for Vermonters at every level – for the licensed workers and their families themselves and for the clients and their families who the workers serve.
Legislatures in California, Colorado, Illinois, Nevada, and New Mexico have already passed laws removing immigration-related requirements in professional licensing. I hope this Committee will support Vermont’s commendable effort to join these other states and vote to advance H.606 to promote economic participation and prosperity for all.
I thank the Committee again for this opportunity to reflect on bill H.606. I pause here to welcome your questions, or I can continue with some frequently asked questions I regularly encounter in my practice:
FAQ: Will this bill enable more undocumented or under-documented people to work lawfully in the state of Vermont? Yes. Individuals seeking professional licensure to practice their profession in Vermont as solo or group proprietorships will be able to conduct their business lawfully in the regulated market regardless of immigration or work authorization status.
FAQ: Will this bill make people more ‘documented’ in an immigration-sense? No. This bill confers no immigration right or benefit, as that is the sole purview of the federal government. However, a noncitizen’s history of business ownership and timely tax paying can factor favorably in the federal government’s exercise of discretion over the noncitizens’ immigration matters.
FAQ: Will an undocumented or under-documented person’s professional licensure trigger adverse immigration consequences? For many immigrants, a history of unauthorized work can trigger adverse but waivable immigration consequences. Paradoxically, as above, a history of work whether authorized or not can factor favorably in a noncitizen's application for a discretionary immigration benefit. Note that immigration law does not levy immigration consequences for an immigrant's failure to pay taxes, and a humanitarian-based immigrant's unauthorized work history bears no impact whatsoever on a person's future ability to regularize their status. Also note that immigration law does not levy adverse consequences on an employer who hires an unauthorized worker.
FAQ: How does a person apply for work authorization? To apply for work authorization, a person must submit a form – U.S. Citizenship and Immigration Services Form i-765 in the federal register – proving their identity, immigration posture, and the basis on which they seek to become work authorized or have their authorization renewed. In recent years, the application form has grown in length, complexity, and COST. When I began practicing about 10 years ago, the form was a brief two pages and cost applicants a few hundred dollars. Now the form is seven painstakingly detailed pages and costs applicants over $500 to file. If approved, the government issues the applicant with an “employment authorization document” or a blue-shaded ID card valid for a time-limited period. With that, noncitizens can seek a social security card and number from the Social Security Administration (SSA). For non-permanent residents, the social security card will note the social security number is valid for work so long as the person remains work authorized by immigration authorities.
FAQ: Does this issue ever come up in the legal profession? Yes. Sometimes, a person's immigration status can be a hidden prerequisite for professional licensure, and we think this bill will clarify and standardize how the Vermont Executive handles "hidden" status issues. To offer an example from the legal profession, an applicant for admission to the Vermont Bar must meet several requirements designed to ensure the applicant's education, ethics, and overall suitability for legal practice in Vermont. At present, state and federal law could give rise to a situation where a virtually lifelong Vermonter who is work authorized under the Deferred Action for Childhood Arrivals (DACA) loses their immigration status and becomes unable to practice law here, notwithstanding their ABA accredited law degree, passing bar score, and other qualifying metrics. DACA, for example, is a temporary status rather than a pathway to permanency and has been vulnerable to contentious litigation since its inception. It is possible that a future presidential administration could resume previous efforts to rescind the program once and for all. Without a congressionally legislated fix like the DREAM Act, a Vermont lawyer who loses their DACA could return to being "undocumented," and thus without work authorization, and thus at risk of losing a professional license that requires lawful status like their law license. More information here: https://www.aila.org/blog/facing-challenges-dacamented-and-undocumented-attorneys-practice-immigration-law-in-liminality/.
TL;DR: VAAP’s central message is that VAAP supports this legislative effort - and would support future similar efforts - to take a professional's immigration status out of the equation as a factor the Executive can consider when regulating professional licensure for enumerated professions. VAAP similarly supports parallel provisions introduced in other states to limit professional regulators' analysis to the merits of a person's suitability for licensure based on their education, experience and other metrics measuring competency. Legally, individuals can own businesses and practice their professions as sole proprietors even without work authorization or regularized immigration status. This relatively common fact pattern does not run afoul of federal immigration laws and explains how a person who is otherwise eligible for professional licensure but undocumented or under-documented might seek a license to do business in Vermont. Finally, immigration equity aside, Vermont needs more workers from an economic perspective in order to secure a viable future. Vote yes on H.606!
