SACRAMENTO – California Attorney General Xavier Becerra and New York Attorney General Letitia James today led a coalition of 16 attorneys general in filing a comment letter opposing a proposal by the U.S. Department of Homeland Security (DHS) to undercut the ability of certain immigrants to work. Under the Immigration and Nationality Act (INA), immigrants who have been temporarily released from civil detention and are under an order of supervision (OSUP) pending final removal proceedings may be eligible for a work permit. At least 17,000 individuals are recipients of work permits under these provisions, enabling them to support themselves and their families while their cases are processed. However, under the proposed rule, DHS is attempting to prevent the vast majority of such individuals from being able to work and imposing additional barriers on the few who might still retain eligibility. In the comment letter, the coalition asserts that the proposal will have direct economic harm on immigrant communities, small businesses, and the states — and is contrary to law. 

“Hardworking immigrant families shouldn’t be denied a chance to earn a basic income to keep themselves afloat. They’re not asking for a handout,” said Attorney General Becerra. “This proposal isn’t just contrary to law, it’s cruel and threatens to hurt us all. Providing even the bare minimum in legal protections and treating working people with dignity shouldn’t be up for debate. We urge the Trump Administration to withdraw this latest flawed attack on our immigrant communities.”

On November 19, 2020, DHS published its proposal to eliminate employment authorization eligibility for certain immigrants under an OSUP who are temporarily released from custody, providing only a narrow exception for those whose country of origin affirmatively refuses to provide travel documents. According to DHS’s own analysis, this change would decimate the number of such individuals eligible for employment, estimating that a maximum of 459 of such migrants would be able to obtain a work permit. And even those remaining individuals would only be eligible to work with employers using the E-Verify program, which includes just 13.5% of all employers, costs approximately $15,000 per worker, and is rife with problems. Ultimately, the proposed rule, among other things, ignores evidence that foreign-born workers fill positions in essential and underserved sectors of the economy. The proposal also threatens to contribute to immigrant poverty, food insecurity, homelessness, and reduced healthcare access, potentially forcing thousands into the underground economy where they are at greater risk of exploitation. In addition to the hardships faced by impacted individuals and their families, the loss of employment created by the rule would harm employers and states by depriving them of impacted immigrants’ economic contributions, as well as causing an increase in expenditures on publicly-funded healthcare and social services. Further, DHS recognizes that the proposed rule could result in a loss of up to $14.7 billion in wages to immigrants that would otherwise have flowed into and through the U.S. economy.

In the comment letter, the coalition further asserts that:

• DHS failed to properly consider these factors when it put the proposed rule together, in violation of federal law requiring agencies to act in a rational manner and taking all relevant evidence into account for such proposals;
• DHS acted contrary to Congress’s will by proposing a rule that would require immigration officials to ignore the possibility under the INA that individuals under an OSUP could be granted work authorization; and
• The Acting Homeland Security Secretary was not properly appointed to that role, and thus his actions — including this proposed rule — are invalid under federal law and the Constitution.

Attorney General Becerra is committed to protecting the rights and opportunities of working families in California. Earlier this month, Attorney General Becerra filed a friend-of-the-court brief in support of a United Farm Workers challenge to a U.S. Department of Labor rule that will depress temporary-visa holder and domestic farmworker wages in California and throughout the United States. In November, the Attorney General led an amicus brief challenging two executive proclamations threatening to disrupt vast portions of the country’s immigration system and keep immigrant families apart. In May, the Attorney General pushed for safer working conditions for meat and poultry workers, many of whom are immigrants. As COVID-19 began to sweep through the United States, Attorney General Becerra called on the Trump Administration to halt implementation of the public charge rule to help combat the spread of the disease. 

In filing the comment letter, Attorney General Becerra is joined by the attorneys general of New York, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, and Rhode Island.

A copy of the comment letter is available here.