Did DACA status qualify a person for a South Carolina professional license in 2014?

Official title

Asking, is an individual who has been granted Deferred Action for Childhood Arrivals (“DACA” or “deferred Action”) status eligible for a South Carolina professional or occupational license?

Requester

Melina Mann, General Counsel, South Carolina Department of Labor, Licensing and Regulation

Plain-English summary

The state's labor and licensing department asked whether a person granted Deferred Action for Childhood Arrivals could receive a South Carolina professional or occupational license. The Attorney General predicted that a court would find the license should be denied under the state law and federal executive position it examined in 2014. Its reasoning was that deferred action reflected federal prosecutorial discretion and did not itself confer lawful immigration status or state-license eligibility.

The opinion described immigration policy as rapidly changing and expressly limited its prediction to the law and federal position at that time. It also recognized that state or federal law could direct a different result for a particular license.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 2014 opinion treat DACA as lawful immigration status for licensing? A: No. The office treated deferred action as a discretionary decision about enforcement, separate from lawful status and state-benefit eligibility.

Q: Did the Attorney General predict a DACA recipient would receive a South Carolina occupational license? A: No. Under the law and federal position the office reviewed in 2014, it predicted a court would find the license should be denied.

Q: Was that opinion a statement of current licensing law? A: No. It was a 2014 prediction that expressly anticipated further action by courts, federal authorities, or lawmakers.

Background and statutory framework

The office considered federal immigration and public-benefits rules alongside South Carolina's professional-licensing authority. Its conclusion turned on how it read DACA's legal effect and the government's statements about state and local benefits at the time.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-3-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/03/mann-m-os-9695-3-3-14-sc-professional-or-occupational-license-DACA-00211144xD2C78.pdf

Original opinion text

ALAN WILSON

A TIORNEY GENERAL

March 3, 2014

Melina Mann, General Counsel
South Carolina Department of Labor, Licensing and Regulation
Post Office Box 11329
Columbia, South Carolina 29211-1329
Dear Ms. Mann:
Attorney General Alan Wilson has referred your letter dated October 31, 2013 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding.

Issue: Is an individual who has been granted Deferred Action for Childhood Arrivals ("DACA" or "deferred action") status eligible for a South Carolina professional or occupational license? Short Answer: Based on the current law at this time and the position of the federal government, this Office believes a court will most likely find an individual who has been granted Deferred Action for Childhood Arrival (DACA) status should be denied a professional or occupational license in South Carolina. Law/Analysis: Before this Office begins its analysis of your question, we note that the issue of immigration is a national issue dictated by our government. It is rapidly changing. Our United States Supreme Court recently stated: The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982); see generally S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 115-132 (5th ed. 2009). This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10, 102 S.Ct. 2977 (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 81 L.Ed. 255 (1936)).

REMBERT

c. DENNIS BUILDING •

POST OFACE Box 11549

•

COLUMBIA, SC 29211-1549

•

TELEPHONE 803-734-3970

•

FACSIMILE 803-253-6283

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Arizona v. U.S., 132 S.Ct. 2492, 2498 (2012). Therefore, we will answer your question to the best of our knowledge based on the current law as we understand it. 1 DACA is a term that was announced June 15, 2012 in a memorandum by the Secretary of Homeland Security. Arizona Dream Act Coalition v. Brewer, 945 F.Supp.2d 1049 (D.Ariz. 2013). The Secretary announced DACA pursuant to prosecutorial discretion to defer the removal action of an individual not lawfully present in the United States. Id. The Arizona United States District Court stated the following in the Arizona Dream case concerning Arizona's denial of state-issued driver's licenses to DACA individuals: Plaintiffs initially appeared to argue that Arizona's policy was preempted because it conflicted with Secretary Napolitano's discretionary decision to grant deferred status to those who qualify under the DACA program. Plaintiffs identified several ways in which the Arizona policy conflicted with the purposes of the DACA program, arguing that the policy "impermissibly undermines the federal goal of permitting [DACA recipients] to remain and work in the United States, and to be full, contributing members of society." Doc. 30 at 23. In response to this argument, Defendants argued that Secretary Napolitano's memorandum could have no preemptive effect. Defendants are correct. The memorandum does not have the force of law. Although the Supreme Court has recognized that federal agency regulations "with the force of law" can preempt conflicting state requirements, Wyeth, 555 U.S. at 576, 129 S.Ct. 1187, federal regulations have the force of law only when they prescribe substantive rules and are promulgated through congressionally-mandated procedures such as notice-andcomment rulemaking. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir.2010) (citing United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982)). Secretary Napolitano's memorandum does not purport to establish substantive rules (in fact, it says that it does not create substantive rights) and it was not promulgated through any formal procedure. As a result. the memorandum does not have the force of law and cannot preempt state law or policy. Perhaps as a result of this reality, Plaintiffs clarified their conflict preemption argument in their reply memorandum, asserting that the Arizona policy "conflicts with Congress's decision to grant discretion to the Executive Branch to enforce the immigration laws[.]" Doc. 99 at 15 (emphasis in original). Unfortunately for Plaintiffs, this preemption argument also fails. Conflict preemption exists when a state law or policy "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Arizona, 132 S.Ct. at 2501. The "purpose of Congress is the ultimate touchstone[.]" Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 ( 1996) (quotation marks and citations omitted). Plaintiffs have identified no purpose of Congress with which the Arizona driver's license policy conflicts. 1

At the time this Opinion is written, it is this Office's understanding that U.S. Senate bill S. 744, 133 (Cong. 2013) is pending and that the latest version of the bill includes the Coons amendment language concerning professional licenses.

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Plaintiffs characterize Defendants' driver's license policy as an attempt to decide "that DACA recipients are not authorized to be present" in the United States, an attempt that "undermines Congress' intent that the federal government alone have discretion to make these decisions." Doc. 99 at 16 (emphasis in original). The Court does not agree, however, that the Arizona policy constitutes an attempt to decide which aliens may remain in the United States. The policy concerns driver's licens~s. Unlike the Arizona policy that was found to be conflict-preempted in Arizona, the driver's

license policy does not concern the arrest, prosecution, or removal of aliens from the State or the Nation. The Court cannot find that issuance or denial of driver's licenses "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in delegating immigration authority to DBS. See Hines, 312 U.S. at 67, 61 S.Ct. 399. Plaintiffs argue that Defendants' driver's license policy undermines Congress's intent that the federal government decide who can work in the United States. Plaintiffs' submit that Defendants' policy stands as an obstacle to this federal objective because driving is frequently necessary to work. But Plaintiffs cite no authority to show that work was one of the objectives Congress had in mind when it delegated immigration authority to DHS. And to the extent Plaintiffs rely on the purposes of the DACA

program, they are looking to a nonbinding policy of a federal agency, not the intent of Congress which is the touchstone of conflict preemption analysis. What is more, the Court certainly cannot impute the intentions of the DACA program to Congress when Congress itself has declined repeatedly to enact legislation that would accomplish the goals of the DACA program. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011).

Even DHHS classifies DACA recipients as not "lawfully present" for purposes of certain benefits. Plaintiffs in some respects are like the undocumented aliens in Plyler, whom the Court described as enjoying an "inchoate federal permission to remain," 457 U.S. at 226, 102 S.Ct. 2382, but there are material distinctions from the Plyler undocumented aliens as well. Id. at I 059-1060, I 063-1064 (emphasis added).

As stated by the Department of Homeland Security, "[d]eferred action DOES NOT provide an individual with lawful status." U.S. Citizenship
&
Immigration
Services,
https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process (or www.uscis.gov, click on Humanitarian, click on Consideration of Deferred Action for Childhood Arrivals Process) (February 25, 2014) (emphasis added); Dept. of Homeland Security, https://www.dhs.gov/deferred -action-childhood-arrivals (or www.dhs.gov/deferred-action, click on frequent questions) (February 25, 2014) (emphasis added). As quoted from Homeland Security's website, About Deferred Action for Childhood Arrivals QI: What is deferred action?

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A 1:Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence. Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate "an economic necessity for employment." OHS can terminate or renew deferred action at any time at the agency's discretion.

Q6: If my case is deferred, am I in lawful status for the period of deferral? A6: No. Although action on your case has been deferred and you do not accrue

unlawful presence during the period of deferred action, deferred action does not confer any lawful status. There is a significant difference between "unlawful presence" and "unlawful status." Unlawful presence refers to a period an individual is present in the United States (I) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and JO-Year Bars.) The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time OHS defers action in your case, you remain subject to all legal restrictions and prohibitions on individuals in unlawful status. Q7: Does deferred action provide me with a path to permanent residence status or citizenship?

A7: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Q13: Is passage of the DREAM Act still necessary in light of the new process? Al3: Yes.The Secretary of Homeland Security's June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that OHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about

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their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status. Dept. of Homeland Security, Deferred Action for Childhood Arrivals, https://www.dhs.gov/deferredaction-childhood-arrivals (or www.dhs.gov/deferred-action, click on frequent questions) (February 25, 2014) (emphasis added). DACA status by the Department of Homeland Security does not have the force of law and cannot preempt state law. Arizona Dream Act Coalition v. Brewer, 945 F.Supp.2d 1049 (D.Ariz. 2013). 2 Therefore, we can conclude deferred action (DACA) status does not give an individual lawful status in the United States according to our federal government Hence, let us examine a pertinent South Carolina law regarding licenses. South Carolina Code Section 8-29-10 requires a verification of lawful presence for every agency or political subdivision in South Carolina issuing a state or local public benefit. The statute states: (A) Except as provided in subsection (C) of this section or where exempted by federal law, on or after July 1, 2008, every agency or political subdivision of this State shall verify the lawful presence in the United States of any alien eighteen years of age or older who has applied for state or local public benefits, as defined in 8 USC Section 1621, or for federal public benefits, as defined in 8 USC Section 1611, that are administered by an agency or a political subdivision of this State. (B) The provisions of this article shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

S.C. Code § 8-29-10 (1976 Code, as amended). The verification for lawful presence pursuant to S.C. Code Section 8-29-10 requires an applicant to meet three requirements, which state if an applicant is not a U.S. citizen or legal permanent resident eighteen or older, he must be: a qualified alien (or nonimmigrant) under the Federal Nation Immigration & Nationality Act, Public Law 82-414; b. who is at least 18 yrs. old; and c. who is lawfully present in the United States.

a.

S.C. Code § 8-29-lO(D) (emphasis added). As previously mentioned, the Department of Homeland Security has already clarified lawful status is not given to an individual under DACA. Department of Homeland Security, supra. However, let us examine 8 U.S.C. Section 1621 concerning state and local public benefits. The federal law states: (a) In general Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not-(1) a qualified alien (as defined in section 1641 of this title), 2

See also Saldana v. Lahm, 2013 WL 5658233 (not reported in F.Supp.2d) (D.Neb. 2013).

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(2) a nonimmigrant under the Immigration and Nationality Act [8 U.S.C.A. § 110 1 et seq.], or (3) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C.A. § l 182(d)(5)] for less than one year, is not eligible for any State or local public benefit (as defined in subsection (c) of this section).

(c) "State or local public benefit" defined
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the tenn "State or local public benefit" means-. (A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and (B) any retirement, welfare, health, disability, public or assisted housing~ postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government. (2) Such tenn shall not apply-(A) to any contract, professional license, or commercial 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, if section 14 l of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect; (B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for pennanent residence under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as detennined by the Secretary of State, after consultation with the Attorney General; or (C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States. (3) Such tenn does not include any Federal public benefit under section 161 l(c) of this title. (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) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility. 8 U .S.C. § 1621 (emphasis added). This federal statute makes it clear a professional license may not be

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issued by a State or local government to an alien who is not one of three exceptions (qualified pursuant to 8 U.S.C. § 1641, a nonimmigrant pursuant to U.S.C. § 1101, or an alien who is paroled pursuant to 8 U.S.C. § l 182(d)(5) for less than one year}3 unless there is a specific State law enacted after August 22, 1996 granting such eligibility. It is this Office's understanding there is no such State law in South Carolina authorizing public benefits such as professional licenses for aliens do not lawful status in the United States. Furthermore, let us examine the definition of qualified alien pursuant to federal law Section 1641. It states: (a) In general Except as otherwise provided in this chapter, the terms used in this chapter have the same meaning given such terms in section lOl(a) of the Immigration and Nationality Act [8 U.S.C.A. § l lOl(a)]. (b) Qualified alien For purposes of this chapter, the term "qualified alien" means an alien who, at the time the alien applies for, receives, or attempts to receive a Federal public benefit, is-(1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], (2) an alien who is granted asylum under section 208 of such Act [8 U.S.C.A.
§ 1158],
(3) a refugee who is admitted to the United States under section 207 of such Act [8 U.S.C.A. § 1157], (4) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C.A. § l l 82(d)(5)] for a period of at least I year, (5) an alien whose deportation is being withheld under section 243(h) of such Act [8 U.S.C. 1253] (as in effect immediately before the effective date of section 307 of division C of Public Law 104-208) or section 24l(b)(3) of such Act [8 U.S.C. 123 l(b)(3)] (as amended by section 305(a) of division C of Public Law 104-208), (6) an alien who is granted conditional entry pursuant to section 203(a)(7) of such Act [8 U.S.C. l 153(a)(7)] as in effect prior to April 1, 1980; or (7) an alien who is a Cuban and Haitian entrant (as defined in section 50l(e) of the Refugee Education Assistance Act of 1980). 8 u.s.c. § 1641. Moreover, the United States Department of Justice filed an amicus brief in 2013 supporting the denial of a professional law license to an alien who immigration status is under the deferred action status. The Brief for the United States of America as Amicus Curiae before the Supreme Court of Florida regarding a license to practice law stated: Congress made certain categories of aliens ineligible, absent an affirmative state enactment conferring eligibility, for "any grant, contract, loan, professional license, or 3

This Office is going to presume for purposes of your question that all licenses issued by the South Carolina Department of Labor, Licensing and Regulations would be included in 8 U.S.C. § 1621.

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commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government." 8 U.S.C. § 1621 (c). A license to practice law is a "professional license." The narrow issue of statutory construction before the Cort is therefore whether a state bar license is "provided by an agency of a State or local government or by appropriated funds of a State or local government." Id. As explained below, because this Court is funded through appropriations, the licenses that it issues are "provided ... by appropriated funds of a State." Id. Under federal law, undocumented aliens are therefore ineligible for these licenses absent the "enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility." Id. § 162l(d). In the PRWORA, Congress created two parallel provisions that address issuance of licenses and benefits by federal and state agencies .... In the second provision, which is at issue here, Congress set a default rule <alterable by states) that makes certain aliens ineligible for state public benefits. similarly defined to include "any grant contract loan. professional license. or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government." Id.§ 162l(c). These provisions were plainly designed to preclude undocumented aliens from receiving commercial and professional licenses issued by States and the federal government. Their sweeping language demonstrates that Congress intended to act comprehensively in prohibiting receipt of such benefits by undocumented aliens. and they should be construed in a manner that furthers that evident purpose. We are aware of no commercial or professional license that is not provided by an agency, provided by appropriated funds, or both.

[II.] B. The notion of ''deferred action' has no bearing on the question presented here. The term "deferred action" refers to the exercise of prosecutorial discretion by OHS as to aliens who are subiect to removal from the United States. As the U.S. Supreme Court has explained, "[a]t each state [of the deportation process] the Executive has discretion to abandon the endeavor, and at the time [the Illegal Immigration Reform and Immigrant Responsibility Act] was enacted the [Immigration and Naturalization Service] had been engaging in a regular practice (which had come to be known as 'deferred action') of exercising that discretion for humanitarian reasons or simply for its own convenience." Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 ( 1999).

Although an alien who has been granted deferred action may apply for work authorization, see 8 C.F.R. § 274a.12(c)(l4), deferred action is not an immigration status or category described in 8 U.S.C. § 1621(a). Neither deferred action nor employment authorization has any bearing on an individual's eligibility for state and local benefits under 8 U.S.C. § 1621.

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Exempting additional categories of aliens from the operation of 8 U.S.C. § 1621 would require new legislation. Congress is currently considering proposed legislation that would make substantial changes to the immigration laws. See S. 744, 113 (Cong. 2013). Such legislation could alter the operation of 8 U.S.C. § 1621. Cf. Coons Amendment 10 to S. 744, filed in Senate Judiciary Committee (2013) (proposing that "[a]I individual who is authorized to be employed in the United States may not be denied a professional, commercial, or business license on the basis of his or her immigration status."). Florida Board of Bar Examiners RE: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar brief for the United States of America as Amicus Curiae by Stuart F. Delery (Case No. SC 11-2568) (filed May 20, 2013) (emphasis added).4 Nevertheless, this Office maintains that the South Carolina Department of Labor, Licensing, and Regulation ("LLR") is charged with the protection of the public through the regulation of professional and occupational licenses and the administration of boards of practitioners. S.C. Code § 40-1-40. LLR governs according to statute and regulatory authority. S.C. Code § 41-3-10, et al. Additionally, this Office points out the South Carolina General Assembly also maintains the power to regulate when needed, as stated below: (C) If the General Assembly determines that a particular profession or occupation should be regulated or that a different degree of regulation should be imposed on the regulated profession or occupation, it shall consider the following degrees of regulation in the order provided and only shall regulate the profession or occupation to the degree necessary to fulfill the need for regulation: (I) If existing common law and statutory causes of civil action or criminal prohibitions are not sufficient to eradicate existing harm or prevent potential harm, the General Assembly first may consider making statutory changes to provide stricter causes for civil action and criminal prosecution.

4

It is worth noting regarding Social Security benefits, 8 CFR 1.3 (a)(4)(vi) states: (a) Definition of the term an "alien who is lawfully present in the United States." For the purposes of 8 U.S.C. 16l l(b)(2) only, an "alien who is lawfully present in the United States" means:
· (4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure: (vi) aliens in deferred action status;

While there may be multiple other statutes addressing deferred action, it is this Office's understanding the Department of Justice's amicus brief clarifies that deferred action is related to immigration enforcement and does not allow an individual to receive state or local benefits such as a professional license, as stated above, and thus we will not address the numerous other sources of laws, regulations and authorities.

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(2) If it is necessary to determine the impact of the operation of a profession or occupation on the public, the General Assembly may consider implementing a system of registration. (3) If the public requires a substantial basis for relying on the professional services of the practitioner, the General Assembly may consider implementing a system of certification. (4) If adequate regulation cannot be achieved by means less than licensing, the General Assembly may establish licensing procedures. (D) In determining the proper degree of regulation, if any, the General Assembly shall determine: ( 1) whether the practitioner, if unregulated, performs a service to individuals involving a hazard to the public health, safety, or welfare; (2) what the opinion of a substantial portion of the people who do not practice the particular profession, trade, or occupation is on the need for regulation; (3) the number of states which have regulatory provisions similar to those proposed; (4) whether there is sufficient demand for the service for which there is no regulated substitute, and this service is required by a substantial portion of the population; (5) whether the profession or occupation requires high standards of public responsibility, character, and performance of each individual engaged in the profession or occupation, as evidenced by established and published codes of ethics; (6) whether the profession or occupation requires such skill that the public generally is not qualified to select a competent practitioner without some assurance that the practitioner has met minimum qualifications; (7) whether the professional or occupational associations do not adequately protect the public from incompetent, unscrupulous, or irresponsible members of the profession or occupation; (8) whether current laws which pertain to public health, safety, and welfare generally are ineffective or inadequate; (9) whether the characteristics of the profession or occupation make it impractical or impossible to prohibit those practices of the profession or occupation which are detrimental to the public health, safety, and welfare; (10) whether the practitioner performs a service for ·others which may have a detrimental effect on third parties relying on the expert knowledge of the practitioner. S.C. Code § 40-1-10 (C), (0) ( 1976 Code, as amended). Conclusion: Therefore, this Office believes except where State or federal law directs otherwise, South Carolina LLR regulates professional and occupational licenses (noting the South Carolina General Assembly may also intervene). Thus, it appears while deferred action (DACA) is a matter of prosecutorial discretion being implemented by the federal government, DACA does not give an individual "lawful status," and does not carry the force of law; the federal government makes it clear it sees DACA as a separate issue from receiving state and local benefits such as a professional license pursuant to 8

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U.S.C. § 162 1.5 Based on such an interpretation by the same administration that issued the DACA status in its prosecutorial discretion and based on State law, this Office believes a cou11 will fi nd that such a license should be denied to an individual in DACA status. However, this Office is only issuing a legal opinion. Unti l a court, the federal government or the legislature fu1t her specifically address the issues presented in your letter, this is on ly an opinion on how this Office believes a court would interpret the law in the matter at this tim e. If it is later determined otherwise or if you have any add itional questions or issues, please let us know. Sincerely,

~<;&. CV~v
Anita S. Fair
Assistant Attorney General
REV IEWED AND APPROVED BY:

;/&;t»·~

t o bert D. Cook
So licitor General

5

T h is opini on is limited to th e question asked, which concerns professional and occupational licenses only.