The right to develop human capital is a broad way of understanding the rights accorded by federal and state laws and court decisions pertaining to fundamental building blocks for individuals to thrive. These include the right to work, the right to property, the right to basic shelter, the right to marry, and the right to adopt. Most of these rights derive from the principle of equal protection that arose from struggles involving discrimination on the basis of race, disability status, and sexual orientation.

Building on the landmark decision of Brown v. Board of Education (1954) that struck down Jim Crow laws in public education, the US Supreme Court ruled in Plyler v. Doe (1982) that the Fourteenth Amendment’s equal protection clause safeguards the right to K–12 public education for all undocumented children. The Plyler Court cited the Brown decision in arguing that K–12 education is fundamental to their integration, to their formation of human capital, and to the state and national interest. Federal courts have reaffirmed the equal protection provisions of Plyler time and again, including issuing a permanent injunction on California’s Proposition 187 in 1994 over its ban on allowing undocumented students in public K-12 schools, and blocking a provision in Alabama’s HB 56 in 2012 that required school officials to check and report on newly enrolled K–12 students’ immigration status. At the same time, federal courts have stopped short of extending the equal protection framework for immigrant rights in other arenas, including for higher education. On these and other features of human capital formation, state control over the rights of undocumented immigrants have led to very divergent policy outcomes.

While courts have constrained the ability of states to deny public education to undocumented immigrants, they have placed very few constraints on the authority of states to regulate immigrant rights to employment. Indeed, immigration federalism enables states to either require or limit employer use of a federal database, E-Verify, that uses both Department of Homeland Security and Social Security Administration databases to electronically verify the identity and work authorization of employees.

Recently, the Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (2002) that undocumented workers are not entitled to back pay, making them more vulnerable to employer abuse and severing immigrants from access to rights established under the National Labor Relations Act of 1935. Moreover, in 1996, IIR-IRA generally prohibited states from conferring a “public benefit” (including professional licenses) to an unauthorized immigrant unless the state affirmatively enacted a state law providing the benefit after 1996. Thus, court interpretation and federal action have tended to lower the existing federal baseline on the right to human capital formation, but they have also given states new opportunities to expand those rights above a meager federal baseline.

In 1996, the federal government’s Personal Work Opportunity and Reform Act (PWORA) made many groups of noncitizens ineligible for important federal health care benefits, including federally funded public benefit programs: Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP, often referred to as “food stamps”), Supplemental Security Income (SSI), Medicaid, and the Children’s Health Insurance Program (CHIP). Enabling state to expand and contract these rights, the 1996 law devolved some decision-making over noncitizen eligibility for jointly funded federal–state programs and state-only public assistance programs to state governments, and it also required states that desired to provide public assistance to unauthorized immigrants to do so through enactment of affirmative legislation after 1996. This allows states to spend their own resources to cover nonqualifying legal and unauthorized immigrants without a federal match in funds.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIR-IRA) of 1996 restricted states’ ability to provide postsecondary education benefits on the basis of state residency, unless a US citizen from another state would also be eligible for that benefit.

Today, states have expanded immigrant access to prenatal health care in three ways: laws granting access to CHIP for unborn children; laws granting access to presumptive eligibility (PE) for pregnant women to obtain immediate temporary Medicaid coverage; and states setting up more comprehensive low-income insurance for pregnant women through state-funded programs.