May 17,1999
Mr. John R. Speed, P.E. Opinion No. K-005 1
Executive Director
Texas Board of Professional Engineers Re: Whether the Board of Professional
P.O. Drawer 18329 Engineers is required to determine whether
Austin, Texas 78760-8329 individuals seeking licensure in Texas pursuant
to the North American Free Trade Agreement
are citizens or permanent residents of the
United States (RQ-1181)
Dear Mr. Speed:
You request an opinion from this offlce clarifying the requirements of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Welfare Reform Act”), and
the North American Free Trade Agreement (“NAFTA”) with respect to issuance of professional
licenses to aliens. You suggest that the Welfare Reform Act and NAFTA conflict because “NAFTA
essentially says that anyone who is licensed in one of the member-nations can practice a licensed
trade in the United States, while the Welfare Reform Act restricts license-holders to those who are
citizens or legal residents of the United States.” Letter from John R. Speed, Executive Director,
Texas Board OfProfessional Engineers, to Attorney General Dan Morales 2 (Aug. 10,1998) (on tile
with Opinion Committee). Accordingly, you ask whether the Board of Professional Engineers (the
“Board”) is required by the Welfare Reform Act to determine if individuals seeking licensure from
the Board “pursuant to the provisions of NAFTA” are citizens or permanent residents of the United
States.’ Id. If the individuals are not United States citizens or permanent residents, you also ask
whether the Board must deny them licensure. We conclude that while the Welfare Reform Act
restricts the issuance ofprofessional licenses to aliens based on their immigration status, it does not
limit the issuance of such licenses to citizens and permanent residents of the United States.
Accordingly, the Board may not deny licensure to Canadian or Mexican nationals solely because
they are not citizens or permanent residents of the United States. The Board must verify the
immigration status of Canadian and Mexican nationals who are physically present in this country
to determine their eligibility for a professional license in accordance with the Welfare Reform Act.
The United States, Canada, and Mexico entered into NAFTA on December 17, 1992, to
establish a tiee trade arca. See North American Free Trade Agreement Between the Government of
the United States of America, the Government of Canada, and the Government of the United
‘We assume your reference to “legal residents” is to permanent residents of the United States.
Mr. John R. Speed, P.E. - Page 2 (JC-0051)
Mexican States, (“NAFTA”) Vol. I, art. 101 (Dec. 8, 1993). NAFTA was approved and
implemented by Congress by the North American Free Trade Agreement Implementation Act, 19
U.S.C.A. $§ 3301-3473 (West Supp. 1998) (effective Dec. 8, 1993). The federal act implementing
NAFTA contains a statutory supremacy clause, providing that “[n]o provision of [NAFTA], nor the
application of any such provision to any person or circumstance, which is inconsistent with any law
of the United States shall have effect.” 19 U.S.C.A. 5 3312(a) (West Supp. 1998).
Chapter 12 of NAFTA applies to cross-border trade in services, including professional
services. See NAFTA, Vol. I, art. 1213(2) (definition of “cross-border provision of a service” and
“cross-border trade in services”). To ensure that any licensing or certification measure* adopted or
maintained by a party with respect to nationals of another party, i.e., a citizen or permanent resident
of a party, does not constitute an “unnecessary barrier to trade,” article 1210(l) directs each party
to adopt “objective and transparent criteria” based on competence and ability. Id. art. 1210(l); see
also id. art. 201(l) (definitions of “person of a party” and “national”). In accordance with this
objective, article 1210(3) generally requires each party within two years of the date of entry into
force of the agreement’ to eliminate any citizenship or permanent residency requirement for the
licensing or certification ofprofessional service providers of another party. Zd. art. 1210(3); id. Vol.
II, Annex I, II, &IV; see&o H.R. REP. NO. 103-361, pt. III, at 178 (1993) (NAFTA obligates each
party at both the state and federal level to eliminate any citizenship or permanent residency
requirements for licensing or certifying professionals.).
Thus, article 1210(3) of NAFTA simply requires the elimination of citizenship and
permanent residency requirements for a professional license. It does not allow anyone licensed in
one of the member-nations to practice a licensed trade in the United States. See NAFTA, Vol. I, art.
1210; H.R. Dot. No. 103-159, at 606 (1993) (Professional Licensing) (nothing in NAFTA allows
Mexican or Canadian professionals to practice a licensed profession in the United States without
meeting state licensing criteria and receiving such licenses nor requires change in state certification
or licensing procedures other than elimination of citizenship or permanent residency requirement);
H.R.REP.No. 103-361,ptIII,at 177-78(1993)(MEDICALPROFESSIONALS)(same). Nordoes
article 1210(3) authorize a Mexican or Canadian national to seek and obtain a professional license
from a licensing agency in the United States pursuant to its terms as your question suggests. Article
1201(3) specifically provides that nothing in chapter 12 shall be construed to impose an obligation
on a party with respect to a national of another party seeking access to its employment market or
confer any right on that national with respect to that access or employment. Finally, although in the
case of a conflict with the provisions of NAFTA federal law prevails for purposes of domestic law,
we do not believe that there is a conflict between article 1201(3) ofNAFTA and the Welfare Reform
Act.
‘“[MJeasure includes any law,regulation,procedure, requirementorpractice[.]”NAFTA,Vol.I, art. 201(1).
‘Article 2203 of NAFTA provides that the “Agreement shall enter into force on January 1, 1994, cm an
exchange of written notification certifying the completion of necessary legal procedures.” Id.art.
2203.
Mr. John R. Speed, P.E. - Page 3 (JC-0051)
The Welfare Reform Act, 8 U.S.C.A. $3 1601-1646 (West Supp. 1998), restricts the
eligibility of aliens, persons who are not United States citizens or nationals,4 to receive state and
local benefits. “State or local public benefits” is defined broadly and includes any “‘professional
license provided by an agency of a State or local government.” Id. $ 1621(c)(l)(A). The term
does not, however, apply to a professional license for a nonimmigrant whose visa for entry is related
to such employment in the United States, or to a citizen of a freely associated state (the Republic of
Palau, the Federated States of Micronesia, or the Republic of the Marshall Islands) if section 141 of
the applicable compact of free association approved in Public Laws 99-239 or 99-658 or a successor
provision is in effect. Id. 5 1621(c)(2)(A); 48 U.S.C.A. $5 1901 (West Supp. 1998) (compact of free
association with Federated States of Micronesia and Republic of Marshall Islands), 193 1 (compact
of free association with Republic of Palau). By recent amendment, the Welfare Reform Act’s
restriction on grant of state or local public benefits does not apply to the issuance or renewal of a
professional license by a foreign national not physically present in the United States. See Noncitizen
Benefit Clarification and Other Technical Amendments Act, Pub. L. No. 105-306, 112 Stat. 2926
(1998) (to be codified at 8 U.S.C. 5 1621(c)(2)(C) (1998)).
In general, only a qualified alien, a nonimmigrant under the Immigration andNationality Act,
id. $5 1101-1537 (West Supp. 1970 & 1998)(the“ImmigrationAct”),oranalienwho isparoledinto
the United States under section 1182(d)(5) of the Immigration Act for less than one year is eligible
for “State or local public benefits.” Id. 5 1621(a) (West Supp. 1998). For purposes of the Welfare
Reform Act, a “qualified alien” is an alien who at the time she or he applies, receives, or attempts
to receive a public benefit is (1) an alien lawfully admitted for permanent residence under the
Immigration Act; (2) an alien granted asylum under section 1158 of the Immigration Act; (3) a
refugee admitted to the United States under section 1157 ofthe Immigration Act; (4) an alien paroled
into the United States under subsection 1182(d)(5) of the Immigration Act for at least one year; (5)
an alien whose deportation is being withheld under subsection 1253(h) of the Immigration Act as
in effect before April 1,1997, or whose removal is being withheld under subsection 125 l(b)(3); (6)
an alien granted conditional entry under subsection 1153(a)(7) of the Immigration Act as in effect
before April 1, 1980; (7) an alien who is a Cuban or Haitian entrant; or (8) an alien who or whose
child or parent has been battered or subjected to extreme cruelty in the United States and who
otherwise satisfies the requirements of subsection 1641(c) of the Welfare Reform Act. 8 U.S.C.A.
§ 1641(b), (c) (West Supp. 1998).
Under these provisions, persons eligible for professional licensure under the Welfare Reform
Act are United States citizens, non-citizen nationals (American Samoans), qualified aliens,
nonimmigrants, aliens paroled into the United States under section 1182(d)(5) of the Immigration
Act for less than one year, nonimmigrants whose visa for entry is related to their employment in the
United States, citizens of freely associated states (the Republic of Palau, the Federated States of
‘8 U.S.C.A. 5 1101(a)(3) (West 1970). “National of the United States” is “(A) a citizen of the United States,
or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” Id.
$ l101(22). Non-citizen United States nationals category presently includes only American Samoans. See Verification
of Eligibility for Public Benefits, 63 Fed. Reg. 41662,41668 (1998) (to be codified at 8 C.F.R. pt. 104).
Mr. John R. Speed, P.E. - Page 4 (JC-0051)
Micronesia, or the Republic of the Marshall Islands), and foreign nationals not physically present
in the United States. Thus, the Welfare Reform Act does not limit issuance of professional licenses
to citizens and permanent residents of the United States. Accordingly, the Board may not deny
licensure to Canadian or Mexican nationals solely because they are not citizens or permanent
residents of the United States.
Your question as to whether the Board must determine if individuals seeking licensure
“pursuant to NAFTA” are United States citizens or permanent residents is more complicated. We
assume, given your reference to NAFTA, that the persons you ask about are citizens or permanent
residents of Canada or Mexico and not of the United States. If such individuals are not physically
present in the United States, the Board is not required to determine their immigration status under
the Welfare Reform Act. With respect to all other Canadian or Mexican nationals, the Board must
determine whether they are qualified aliens, nonimmigrants whose visa for entry is related to their
employment in the United States, nonimmigrants, or aliens paroled to the United States for less than
a year. Consequently, the Board must verify fhe immigrant status of Canadian and Mexican
nationals who are physically present in this country to determine their eligibility for a professional
license in accordance with the Welfare Reform Act.
In accordance with statutory directives, on November 17, 1997, the Department of Justice
issued the Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility
Under Title IVofthe PersonalResponsibilityand Work Opportunity Act of 1996 [hereinafter Interim
Guidance], setting forth procedures fhat benefit providers can use to verify citizenship, qualified
alien status, and eligibility under the Welfare Reform Act before promulgation of the final
regulations. See Interim Guidance, 62 Fed. Reg. 61344 (1997). On August 4,1998, the Immigration
and Naturalization Service issued a proposed rule requiring entities that provide federal benefits to
verify that applicants are eligible for the benefits under the Welfare Reform Act according to the
specified procedures. See Immigration and Naturalization Service Verification of Eligibility for
Public Benefits, [hereinafter INS Verification] 63 Fed. Reg. 41662 (1998) (to be codified at 8 C.F.R.
pt. 104). This rule also sets forth procedures by which a state or local government can verify
eligibility for state or local benefits. The commentary to the rule advises that the Interim Guidance
and the rule “should be used in tandem--the rule as the applicable legal verification requirement, and
the Interim Guidance as a how-to guide on appropriate handling of these applications.” Id. at 41663.
Federal or state agencies providing federal public benefits must comply with the rule’s verification
requirements unless otherwise exempted. 8 U.S.C.A. § 1642(a)(l), (2) (West Supp. 1998); INS
Verification, 63 Fed. Reg. 41662 (1998). Agencies providing state or local benefits have the option
of using the verification procedures. 8 U.S.C.A. 9 1642(a)(3) (West Supp. 1998); 63 Fed. Reg.
41662 (1998). The Board may consider it advisable to review the Interim Guidance and the rule
before implementing any procedures for verifying the eligibility of alien licensure applicants for
professional licenses in accordance wifh the Welfare Reform Act.
Mr. John R. Speed, P.E. - Page 5 (JC-0051)
SUMMARY
The Board of Professional Engineers must verify the immigration status
of Canadian and Mexican nationals who are physically present in this country
seeking licensure in Texas to determine their eligibility for a professional
license in accordance with the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, as amended. The Board may not deny licensure
to Canadian or Mexican nationals solely because they are not citizens or
permanent residents of the United States.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Sheela Rai
Assistant Attorney General