Persons who immigrated to the United States illegally or whose immigrant status is unresolved are often forced to work secretly and seek employment through other than the usual channels, and are often exploited, particularly in the Construction Industry, where they may often be cheated by unethical employers or have difficulty getting paid for their work.
However immigration status, or the lack thereof, does not necessarily prevent them from obtaining a Contractor’s or other professional license in California, and establishing their own construction business.
California Business and Professions Code section 135.5 provides:
§ 135.5. Licensure and citizenship or immigration status.“(a) The Legislature finds and declares that it is in the best interests of the State of California to provide persons who are not lawfully present in the United States with the state benefits provided by all licensing acts of entities within the department, and therefore enacts this section pursuant to subsection (d) of Section 1621 of Title 8 of the United States Code.
“(b) Notwithstanding subdivision (a) of Section 30, and except as required by subdivision (e) of Section 7583.23, no entity within the department [of Consumer Affairs of the State of California, which includes the Contractors State License Board, the Architects’ Board, Engineer and Land Surveyors’ Board, Structural Pest Control Board, Landscape Architects’ Board and many other professional licensing agencies and boards] shall deny licensure to an applicant based on his or her citizenship status or immigration status.
Bus. & Prof. Code, § 135.5.
This law was adopted in 2014 under the authority of Federal law, 8 U.S.C. sec. 1612(d), which provides:
“(d)State authority to provide for eligibility of illegal aliens for State and local public benefits.“A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.”
See also, Bus. & Prof. Code sec. 484.
However, Section 30 of the Bus. & Prof. Code requires a license applicant to provide either an individual tax identification number or social security number if the applicant is an individual. Failure to do can result in a report to the Franchise Tax Board.
Thus, citizenship and immigration status are not relevant or required to obtain many professional licenses in the State of California, as the State appears to have determined that it better to have people professionally licensed and regulated than to have them practicing their professions under cover, without a license, professional training or regulation.
Obtaining a license can also avoid many bars to those persons getting paid or suing to recover what is owed to them for their work, such as Bus. & Prof. Code sec. 7031:
§ 7031. Allegation and proof of license in action on contract; Recovery of compensation paid to unlicensed contractor; Substantial compliance; Exceptions.“(a) Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.
(b) Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”
Bus. & Prof. Code § 7031.
Working without a required license can also be a criminal offense, which might possibly affect a person’s immigration status. (Check with a certified specialist in Immigration law on this point.).
Of course, the Contractor’s license applicant must still pass an examination and show the required experience in the trade or profession for which he or she is seeking to be licensed:
§ 7065. Investigation, classification, and examinations“(a) Under rules and regulations adopted by the board and approved by the director, the registrar shall investigate, classify, and qualify applicants for contractors’ licenses by written examination. This examination shall include questions designed to show that the applicant has the necessary degree of knowledge required by Section 7068 and shall include pertinent questions relating to the laws of this state and the contracting business and trade. . . .”
Bus. & Prof. Code § 7065.
§ 825. Experience Requirement of Applicant.(a) Every applicant for a contractor's license must have had, within the last 10 years immediately preceding the filing of the application, not less than four years experience as a journeyman, foreman, supervising employee or contractor in the particular class within which the applicant intends to engage as a contractor. For purposes of this section, “journeyman” means an experienced worker in the trade who is fully qualified, as opposed to a trainee, and is able to perform the trade without supervision; or one who has completed an apprenticeship program. . . .
(d), in the construction trade for which application is made will be counted as experience Acceptable training in an accredited school or completion of an approved apprenticeship program in accordance with the California Labor Code (commencing with Section 3070 of the Labor Code, Chapter 4, of Division 3) or its equivalent, as approved by the Registrar. In no case, however, will such training or completion of an approved apprenticeship program count for more than 3 years of the experience.
(e) The required experience shall be possessed by one member of the applicant entity or by a responsible managing employee therefor, and the member or responsible managing employee shall be required to take the examination.
16 Calif. Code Regulations sec. 825.
Meeting the experience requirement may be more difficult for an immigrant than a long time resident of the United States, however, the applicant may allowed to prove “equivalent experience” from his or her home country or otherwise.
“§ 826. Registrar to Pass on Experience.“The Registrar may determine that an applicant who does not have the specific experience required in Section 825 has some comparable knowledge, training, and/or experience which is equivalent to the required experience.”
16 Calif. Code Regulations sec. 826.
N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may NOT rely on it without seeking legal advice regarding your particular situation from a competent California Construction attorney and also a competent or specialist Immigration Attorney.
Please also note that factual situations vary, and statutes, regulations and case law as well are frequently and constantly changing and evolving, and these written materials thus also may now be or may become outdated or incorrect.
For further information on this topic and how the current law and policies may apply to your unique project, contract, job, claim or issues, Contact Us via email, phone (415) 788-1881 or visit our website for other contact information.
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