Attorney General James Leads Challenge to Trump Administration’s  Unlawful Attempt to Limit Work Authorization for Immigrants

Proposed DHS Rule Would Violate Law, Harm Immigrant Communities, Burden State Economies

NEW YORK – New York Attorney General Letitia James today co-led a coalition of 16 attorneys general from around the nation in opposing a proposed Trump Administration rule that would virtually eliminate work authorization for nearly all immigrants who were released under orders of supervision. In a comment letter submitted to the U.S. Department of Homeland Security (DHS), Attorney General James and the coalition argue that the proposed rule lacks reasoned justifications and would harm immigrant communities, small businesses, and states’ economies. Moreover, the proposed rule — which impacts approximately 17,000 individuals and their families nationwide — would also violate federal law, increase the cost of publicly-funded social services, and further burden individuals and businesses that are already suffering from the economic fallout of the coronavirus disease 2019 (COVID-19) public health crisis.

“Even in the waning days of the Trump Administration, the president and his proxies continue to propose unlawful and vindictive policies to complicate the life of immigrants throughout our nation,” said Attorney General James. “Rather than helping those suffering from the financial impact of the ongoing pandemic, this lame-duck administration has, instead, continued to pursue its agenda of targeting and demonizing immigrants who are struggling to make ends meet. Our coalition will continue to use every tool at our disposal to fight against these unjustified, baseless attempts to undermine our immigrant communities.”

Immigrants under orders of supervision are already required to meet certain conditions to qualify for temporary release from DHS custody. Upon their release, the DHS has the authority to grant employment authorization documents that allow those under orders of supervision to legally work in the United States. The proposed rule seeks to virtually eliminate their work authorization eligibility — save for one narrow exception. For those relatively few individuals who fall under this exception, the DHS will require them to work for employers who are part of the E-Verify program — a program rife with so many issues that many employers refuse to participate. The proposed rule also introduces other changes that would further limit immigrants from securing the authorization they need to legally work in the United States.

In the comment letter — led by Attorney General James and California Attorney General Xavier Becerra — the multistate coalition urges the DHS to withdraw this proposed rule because, in addition to the hardship on these individuals and their families, the loss of their employment would also harm employers and the states’ economies and tax bases, which would also cause an increase in expenditures on publicly-funded social services. According to the DHS’s own estimates, the financial damage from not allowing these immigrants to legally work in the U.S. would result in federal tax losses ranging from $923,844,794 to $2,251,612,274 from fiscal years 2020 to 2029. States will stand to lose tax revenue for the same reason.

The coalition further argues that the proposed rule would violate the Administrative Procedure Act (APA) in a magnitude of ways. Federal agencies must “engage in reasoned decision-making” and consider “the advantages and the disadvantages of agency decisions” before taking action. However, the DHS failed to provide reasoned justifications for the significant changes set forth in the proposed rule, and the DHS also failed to adequately consider potential impacts to the affected immigrants, their families and employers, as well as the states.

Additionally, the coalition emphasizes that the proposed rule is contrary to law because Congress never gave the DHS the authority to categorically deny work authorization to immigrants under the Immigration and Nationality Act. Lastly, the purported acting secretary of Homeland Security, Chad Wolf, was not legally authorized to exercise the functions and duties of the secretary of Homeland Security position based on the Homeland Security Act, as the courts have already found.

Today’s letter is the latest effort by Attorney General James to block the Trump Administration’s attempts to change federal policy in ways that harm immigrants. In January, Attorney General James and a coalition of attorneys general sent a comment letter to the DHS, opposing a similar unlawful attempt by the Trump Administration to obstruct asylum seekers from applying for work permits.

Joining Attorneys General James and Becerra in filing today’s comment letter are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, Oregon, and Rhode Island.

This matter was handled by Special Counsel Morenike Fajana of the Executive Division, under the supervision of First Deputy Attorney General Jennifer Levy.