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December 21, 2020


Proposed Rule Would Violate Law, Harm Immigrant Communities and State Economies

Chicago — Attorney General Kwame Raoul today joined a coalition of 16 attorneys general in opposing a proposed rule that would virtually eliminate work authorization for nearly all immigrants who are released under orders of supervision.

In a comment letter submitted to the U.S. Department of Homeland Security (DHS), Raoul and the coalition argue that the proposed rule lacks reasoned justification and would harm immigrant communities, small businesses and states’ economies. Moreover, the proposed rule would 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 COVID-19 pandemic.

“Immigrant workers play an important role in states’ economies and should have the ability to provide for their families,” Raoul said. “I am urging the Department of Homeland Security to withdraw its proposed rule that puts additional undue stress on families, businesses and states at a time when they can least afford it.”

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. The DHS will require the relatively few individuals who fall under this exception to work for employers who are part of the E-Verify program. 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, Raoul and the coalition urge the DHS to withdraw the proposed rule because, in addition to causing hardship to affected immigrants 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’ own estimates, the financial damage from not allowing these immigrants to legally work in the U.S. will result in federal tax losses ranging from $923 million to $2.25 billion from fiscal years 2020 to 2029. States will stand to lose tax revenue for the same reason.

Raoul and the coalition further argue that the proposed rule is unlawful and would violate the Administrative Procedure Act (APA) in several ways. The APA mandates that 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, Raoul and the coalition emphasize 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 courts already have found.

Joining Raoul in filing today’s comment letter are the attorneys general of California, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Rhode Island.


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