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GOP Sens Press DHS on Internal Memos Detailing Plan to Circumvent Executive Amnesty Injunction

Republicans on the Senate Judiciary Committee are raising concerns about internal Department of Homeland Security documents that appear to reveal that the Obama administration is considering unilaterally granting working permits to ineligible foreign nationals in the U.S.

According to the senators, the plan detailed in the memos would allow certain immigrants, potentially even illegal immigrants, sponsored by an employer expedited access to a work permit even if the employer has withdrawn sponsorship.

Such actions, they charge, would not only circumvent the legislative process but also flout a federal court injunction blocking President Obama’s executive amnesty.

In a letter to DHS Sec. Jeh Johnson led by Sen. Chuck Grassley (R-IA), the nine senators — including David Vitter (R-LA), Orrin Hatch (R-UT), John Cornyn (R-TX), Jeff Sessions (R-AL), Mike Lee (R-UT), David Perdue (R-GA), Thom Tillis (R-NC) and Ted Cruz (R-TX) — press the department for more information about justifications for and origin of the memos.

“Such a regulation would constitute yet another illegal ‘executive action’ that would not only directly contravene the will of Congress, but, could also directly violate the injunction on the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and the Deferred Action for Childhood Arrivals (DACA) programs ordered by the District Court for the Southern District of Texas in February,” they wrote in their letter last week.

“As you may recall, the Temporary Injunction Order enjoined your Department from ‘implementing any and all aspects or phases’ of these programs,” they added.

The nine senators pointed to the proposed regulation’s purpose, to “allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.”

But, they charged, separate memos offer more insight into the proposals and the motivation, including a “Policy Memo” that boasts the actions “[m]ay authorize the presence of certain individuals who are not here lawfully and address the needs of some of the intended deferred action population.”

“In other words, the authors of the memo openly acknowledge, and offer as a reason to support the proposal, that granting employment authorization to illegal immigrants under the proposed scheme would accomplish, by different means, the de facto legalization of the population intended to be legalized by the enjoined DAPA program,” the letter reads.

“Accordingly, it appears as though individuals in your Department could be actively engaged in attempting to skirt the injunction issued in February by the District Court for the Southern District of Texas,” they add, going on to demand answers about the breadth of the regulation, administration involvement with the documents, justifications for them, and their legitimacy by Thursday.

Read the letter:

Dear Secretary Johnson:

As members of the Senate Judiciary Committee, we write to express our concerns about a proposed regulation that the Department of Homeland Security is expected to publish soon, pursuant to which certain aliens – potentially including aliens unlawfully present in the United States – with approved employment-based immigrant petitions, but who may not be eligible to file for adjustment of status for many years, will be authorized to be issued an Employment Authorization Document.

Such a regulation would constitute yet another illegal “executive action” that would not only dictly contravene the will of Congress, but, could also directly violate the injunction on the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and the Deferred Action for Childhood Arrivals (DACA) programs ordered by the District Court for the Southern District of Texas in February.[1] As you may recall, the Temporary Injunction Order enjoined your Department from “implementing any and all aspects or phases” of these programs.

The stated purpose of the proposed regulation is to “allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.”[2] However, an internal United States Citizenship and Immigration Services (USCIS) legal memorandum (“Legal Memo”) posted online offers more detail on what is being planned:

(1) USCIS would amend its regulations governing the revocation or continued validity of approved employment-based immigrant visa petitions in cases where the petitioning employer withdraws the petition or terminates its business. The amended regulation would consider such petitions to remain valid for the beneficiary, despite withdrawal by the employer or termination of its business, when certain criteria are met.

(2) USCIS would issue new regulations providing employment authorization to beneficiaries (and their derivative dependents) of approved employment-based immigrant visa petitions.[3]

A separate USCIS policy memorandum (“Policy Memo”) posted on a different website last week presents four specific options for implementing this plan. Under the first option presented, USCIS would potentially provide employment authorization to any aliens physically present in the United States, including illegal immigrants, so long as they are the beneficiaries of an employment-based immigration petition approved for at least one year.[4] The Policy Memo then cites as a “pro” in support of this option that granting employment authorization to that population “[m]ay authorize the presence of certain individuals who are not here lawfully and address the needs of some of the intended deferred action population[.]”[5

In other words, the authors of the memo openly acknowledge, and offer as a reason to support the proposal, that granting employment authorization to illegal immigrants under the proposed scheme would accomplish, by different means, the de facto legalization of the population intended to be legalized by the enjoined DAPA program. Accordingly, it appears as though individuals in your Department could be actively engaged in attempting to skirt the injunction issued in February by the District Court for the Southern District of Texas.

In light of the foregoing, we ask that you respond to our concerns and the questions attached to this letter by November 12, 2015. We want assurances that the Administration will refrain from moving forward with any such proposal that harms the integrity of our legal immigration system and violates the law.

 

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