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Limited Work Permits for Immigrants with Final Orders of Removal

Written By The Shapiro Law Group on January 13, 2021

In November 2020, the Department of Homeland Security (DHS) proposed a new rule to limit discretionary employment authorization documents (work permits) for immigrants who are subject to orders of final removal and are released from DHS detention under an order of supervision. The DHS argues that the proposed rule would align the department’s processes to strengthen immigration enforcement and protect U.S. workers.

According to USCIS Deputy Director for Policy Joseph Edlow, immigrants who are subject to removal should not receive employment benefits because it weakens DHS enforcement authority and operations. Further, Edlow argues that it removes any incentive for immigrants to cooperate in obtaining travel documents because they are not under economic pressure.

Orders of Suspension: Explained

Orders of suspension allow immigrants who are subject to removal to leave DHS custody and live normal lives while waiting for travel documents and arrangements to be made. The immigrant agrees to present check-in at designated dates and times with the DHS officer, cooperate in obtaining travel documents, and present themselves when arrangements are made.

Proposed Rule: Limited Permits

Under the proposed rule, only a small subset of immigrants subject to removal would be eligible to receive an employment authorization document. The limited work permits would be available to immigrants who demonstrate that removal from the United States would be impractical. For example, if the destination country is engaged in a serious war or refuses to accept the immigrant’s admission.

Immigrants who qualify under this narrow exemption are required to establish that their employer is taking part in the E-Verify program and is in good standing. The proposed limited work permit authorizes immigrants to work for no more than one year regardless of if the employment authorization is new or a renewal. The rule will apply to all initial and renewed applications filed on or after the final rule is published. Therefore, for now, workers subject to final removal and who receive work permits may continue to use them until they expire.

Potential Impact

The rule will provide the DHS with another stick to coerce immigrants into accepting final removals. The Administration has unjustly removed immigrants before. The Deputy Director for Policy even stated that the purpose of this rule is to incentivize immigrants into cooperating with their final removal by prohibiting any opportunity for them to earn a living.