In 1872, a young man named Hong Yen Chang, a native of China, traveled to the United States as part of a Chinese educational program. Between 1872 and 1886, he attended Andover, Yale and Columbia Law. After graduating from Columbia, he applied for admission to the New York bar. However, New York law at the time only allowed U.S. citizens to be admitted to the bar. Since Chang was not a citizen, his application was denied.
The following year, in direct violation of the 1882 Chinese Exclusion Act, New York granted Hong Yen Chang a certificate of naturalization. The Chinese Exclusion Act prevented any Chinese-born person from obtaining citizenship in the United States. New York then awarded Chang membership in the New York bar. In 1888, Hong Yen Chang became the first admitted Chinese lawyer in the United States.
Shortly thereafter, Chang moved to California to serve the Chinese community there. Like New York, California only allowed U.S. citizens or persons eligible to become U.S. citizens, to be admitted to the bar. Unlike New York, California refused to recognize Chang’s certificate of naturalization.
In 1890, the Supreme Court of California denied Chang’s motion to be admitted to the bar. The Court found that New York had illegally issued the certificate of naturalization. Since Chang was not a citizen, and was never going to be eligible to be a citizen, he could not be admitted to the California state bar. Hong Yen Chang died in 1926 without ever being admitted to practice in California.
So, why are we talking about Hong Yen Chang? Because on Monday, the California Supreme Court reversed their 1890 decision and posthumously granted Chang admission to the California bar.
Even if we cannot undo history, we can acknowledge it and, in so doing, accord a full measure of recognition to Chang’s pathbreaking efforts to become the first lawyer of Chinese descent in the United States … In granting Hong Yen Chang posthumous admission to the California Bar, we affirm his rightful place among the ranks of persons deemed qualified to serve as an attorney and counselor at law in the courts of California.
California’s decision comes at a very interesting time for non-American lawyers in the United States. Non-U.S. citizens have been allowed to be admitted to state bars for over forty years, ever since 1973 when the U.S. Supreme Court reversed Connecticut’s denial of a Dutch citizen’s application to the bar in In re Griffiths.
In Griffiths, the Court held that Connecticut’s exclusion of Dutch citizen and legal U.S. resident, Ms. Fre Le Poole Griffiths, from practicing law in Connecticut, violated the Equal Protection Clause of the Fourteenth Amendment. The state had to meet a “heavy burden” to demonstrate that non-citizens should be denied admission to the bar. It could not do so:
It in no way denigrates a lawyer’s high responsibilities to observe that the powers “to sign writs and subpoenas, take recognizances, [and] administer oaths” hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens. Nor do we think that the practice of law offers meaningful opportunities adversely to affect the interest of the United States … Nor would the possibility that some resident aliens are unsuited to the practice of law be a justification for a wholesale ban.
In reversing the opinion of the Connecticut Supreme Court, the Court invalidated laws across the country that prevented non-citizens from being admitted to state bars.
Fast forward back to this week. On Tuesday, the day after the Chang ruling came down, the Senate Judiciary Committee heard argument on increasing the H-1B visa cap. For those unfamiliar with the H-1B visa, it’s the primary route to legal employment for “highly skilled” immigrant workers. The visa lasts up to 6 years after which the employer can sponsor the employee for permanent residency. The cap is currently 65,000 per year. The hotly-debated proposal would increase that cap to between 115,000 and 300,000 with an unlimited number of visas granted to the ones who use H-1B visas the most – STEM workers.
It’s interesting that the H-1B visa debate has focused so closely on STEM workers because it does apply to many other “highly skilled” employees as well, including lawyers. Law firms and other legal employers generally hire U.S.based non-citizen lawyers by sponsoring them for non-immigrant H-1B visas. However, as explained, there is a cap on H-1B visas of 65,000 per year. So an international law student intending to stay in the United States can pay tuition, take out loans, pass the bar exam, and get admitted to the bar, but still (once her student visa work permit expires) have no legal way of working in this country since her chance of working essentially comes down to a lottery system.
And that issue is crucial because the number of international students is on the rise. While I can’t tell you the numbers for law schools specifically, I can tell you the numbers for colleges and universities generally. Last November, the Institute of International Education released its Open Doors report on the status of international students at American colleges and universities. In 2014, the number of international students enrolled at American colleges and universities increased by eight percent to a record high of 886,502. Since 2000, the number of international students in the United States has increased by 72%. Students from China and Saudi Arabia together accounted for 73% of the growth.
Part of the reason, of course, is funding. International students, particularly those from China and the Middle East, often pay full tuition to their schools. Open Doors reported that 74% of all international students receive the majority of their funds from sources outside of the United States – 65% of those are personal and family funds. Moreover, according to the Report, in 2013, international graduate and undergraduate students contributed more than $27 billion to the U.S. economy. And remember, for law schools, this is all happening amid a decrease in law school applications, a decrease in lawyer jobs, and a renewed focus on what the future of our profession holds.
Which is why I would encourage all lawyers to pay close attention to this H-1B debate. While many international law students do return to their home countries, many also remain to work in the United States. They work in every area of our legal profession. Not only do they put a new twist on the diversity discussion, but as our legal profession becomes more global and more interconnected, and as foreign jurisdictions pass laws that focus on the future of our profession rather than its past, these international students can play a crucial role in helping U.S. jurisdictions understand their own place in the past, present and future legal profession.
And it’s not just a professional request; it’s a personal one. I was one of those international law students. Prior to getting married to a U.S. citizen in 2009, I was only able to reside in the United States thanks to my student visa sponsored by my undergraduate school and my law school, and then my H-1B sponsored by my law firm. Had the cards fallen differently in 2009 and I had been laid off from my law firm like many of my co-workers were, well, let’s just say, the last six years of my life would have played out very differently.
So let’s all pay attention to the immigration debate, and as California reminded us this week, let’s also remember Mr. Chang, Ms. Griffiths, and all the other unnamed foreign lawyers who fought for the right to practice law in the country we all call home.