ILLEGAL ALIENS NOT ELIGIBLE FOR STATE LICENSING AND CREDENTIALING, ATTORNEY GENERAL J.B. VAN HOLLEN REASONS IN FORMAL OPINION

Department of Regulation and Licensing Should Verify Immigration Status of Applicants For State Professional Licenses and Credentials To Ensure Compliance With Federal Law

MADISON - Wisconsin Attorney General J.B. Van Hollen issued a formal opinion today holding that the state Department of Regulation and Licensing is prohibited by federal law from issuing professional licenses or credentials to illegal aliens.  The opinion was issued in response to a request made by the Secretary of Regulation and Licensing, Celia Jackson, through the Department's interim general counsel.

The Attorney General's opinion recognizes that the federal government exclusively regulates immigration, and that the federal government has broad authority to regulate an alien's conduct while they are in the United States.  Pursuant to those powers, Congress enacted the Personal Responsibility and Work Opportunities Reconciliation Act of 1996.  That act provides that certain aliens, including those in the United States unlawfully, are not eligible for any State or local public benefits.  These benefits are defined to include "any professional license provided by a State or local government."

Van Hollen's opinion also recognizes that in enacting the Personal Responsibility and Work Opportunities Reconciliation Act, Congress declared a national policy to remove the incentive for illegal immigration provided by the availability of public benefits.  The opinion holds that this Act preempts state law that may have provided benefits such as professional licensing to illegal aliens.  Although Congress provided states some flexibility to enact legislation contrary to this federal policy by affirmatively passing laws providing benefit-eligibility to illegal aliens, Wisconsin has not done so.  Indeed, the Attorney General's opinion recognizes that Wisconsin laws have been enacted since 1996 that are consistent with federal policy and expressly deny certain benefits (other than licensing and credentialing) to illegal aliens.

The opinion concludes that although federal law does not dictate what states must do to ensure that applicants who are not entitled to public benefits do not receive such benefits, it permits the states to ask applicants for a professional license or credential to supply evidence substantiating their legal immigration status.  This approach would be consistent with existing state procedures which require applicants for professional licenses or credentials to provide their respective examining board with evidence that they meet qualifications necessary to obtain the license or credential.  In addition, the Attorney General recommends that the Department of Regulation and Licensing "verify the immigration status of all applicants for state professional licenses and credentials to be certain that it is not issuing them in violation of federal law."

Attorney General's Opinion