DHS Proposes End Work Authorization for Aliens with Final Removal

Written by Taher Kameli & Chathan Vemuri

As part of its efforts to further entrench his immigration policy during the home stretch of his Presidency, the Trump Administration is pushing forward as many regulatory actions as possible in a short period of time.[1] Its latest proposal continues the Trump administration’s emphasis on restricting opportunities for immigrant workers in order to leave them open to American workers. On November 17, 2020, the Department of Homeland Security (DHS) proposed a rule to cancel work authorization for non-resident aliens, subject to final removal awaiting deportation.[2] This cancellation would specifically apply to those aliens subject to final removal awaiting deportation that have been released from DHS custody yet still lack the requisite travel documents needed to deport them from the U.S.[3] The United States Citizenship and Immigration Services stated that the rule is intended to “reduce the incentive for aliens to remain in the [U.S.] after receiving a final order of removal and to strengthen protections for U.S. workers.”[4] This has been an oft-cited justification for many of the Trump administration’s immigration policies in relation to work, particularly the H-1B visa occupation restrictions meant to limit H-1B visa approvals for the benefit of qualified US workers.[5]

 

That said, there are limited exceptions to this proposed rule. Essentially, an individual subject to final removal yet temporarily released can be exempted from termination of their work authorization under these exceptions if they can prove that having the work permit is an “economic necessity” for them.[6] One such exception would be for people whose removal is impracticable due to factors such as their country of origin not accepting them back or refusing to issue traveling documents.[7] Another category of people exempted from the termination of work permits would be those “who have been granted a deferral of removal based on U.S. obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”[1] In either case, these work permit exceptions would only be valid for a year.[2]

 

Despite the breakneck speed at which the Trump administration is trying to pass this and other regulations to bolster a more restrictive immigration system, this is still only a proposed rule and would still need to be subject to public comment, even if for a shortened period of 30 days.[3] Yet the fact that it is being forced through in such an unorthodox manner to begin with demonstrates just how desperate the current administration is to enforce its immigration policies prior to the end of the Trump presidency. One can only guess which other policies may be considered and proposed by the Trump-led Department of Homeland Security to establish the Trump administration’s immigration agenda before Joe Biden takes office on January 20th of 2021.

 

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[1] Id.

[2] Id.

[3] Id.

[1] Genevieve Douglas, DHS Proposes to Nix Work Permits for Certain Foreign Individuals, Bloomberg Law (Nov. 17, 2020, 2:27 PM) available at https://news.bloomberglaw.com/daily-labor-report/dhs-proposes-to-nix-work-permits-for-certain-foreign-individuals

 

[2] Id.

[3] Shkurta Januzi, DHS Wants to Limit Work Permits for Internationals with Final Orders of Removal, VisaGuide.world (Nov. 18, 2020) available at https://visaguide.world/news/us/dhs-wants-to-limit-work-permits-for-internationals-with-final-orders-of-removal/

[4] Genevieve Douglas, DHS Proposes to Nix Work Permits for Certain Foreign Individuals, Bloomberg Law (Nov. 17, 2020, 2:27 PM) available at https://news.bloomberglaw.com/daily-labor-report/dhs-proposes-to-nix-work-permits-for-certain-foreign-individuals

[5] See Blog posts for the weeks of October 5th and October 12th on this topic.

[6] Id.

[7] Id.