A Threat to Employment Authorization Documentation for those With Final Orders of Removal: DHS Proposes a New Rule that Will Take Away the Ability to Work

On November 19th, DHS posted a notice of a proposed rule in the Federal Register. A rule which would eliminate employment authorization document (“EAD”) eligibility for immigrants who have final orders of removal but are temporarily released from custody on an order of supervision. The proposed rule contains an exception to continue to allow employment authorization for immigrants that DHS has determined that removal is “impracticable” because all countries declined to issue a travel document for the individual it was requested for, and who establish economic necessity. Comments are due from the community by December 21, 2020. Comments on associated form revisions are due by January 19, 2021, ironically the same day that President Trump is expected to leave the White House for a change in administration.

This is the newest in a series of attacks on employment authorization for non-citizens.

In June, the Trump Administration unleashed the release of a final rule, set to be published on June 26, 2020, which completely transforms the eligibility criteria for asylum seekers to obtain employment authorization, including requiring asylum seekers to wait one year after filing their asylum application before they are eligible to apply for employment authorization.  This will leave many future asylum seekers unable to support themselves and their families while they wait for decisions on their cases. This also increases the likelihood that they will become a public charge, which will most certainly impact their ability to adjust status down the line. 

Under the prior regulations, USCIS was required to adjudicate that EAD within 30 days of filing; under the final rule, that requirement no longer exists.  The new rule applies to all asylum-based initial EAD applications filed on or after August 21, 2020.   

On September 11, 2020, a district court judge issued a preliminary injunction in CASA v. Wolf, preventing the government from enforcing certain parts of the August 21, 2020 and August 25, 2020 employment authorization regulations on members of two of the organizational plaintiffs, the Asylum Seeker Advocacy Project (ASAP) and Casa de Maryland. Attorneys representing clients subject to the new regulations may want to consider having their clients become members of ASAP in order to try to benefit from the injunction. However, it is important clients understand what this membership means and that USCIS may still reject employment authorization applications filed by ASAP members who didn’t gain membership until after the district court decision. If you are impacted by the newest provisions, please reach out to us so that we can assist you in this.

USCIS Commentary on New Provisions

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