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DHS Proposes to Nix Work Permits for Certain Foreign Individuals

Nov. 17, 2020, 8:27 PM

The Department of Homeland Security has released a proposed rule that would cancel work authorization eligibility for people who are subject to final removal orders but haven’t yet been deported.

The proposal would “limit discretionary employment authorization” for those residing in the U.S. after issuance of a final removal order, but who have been temporarily released from DHS custody on an order of supervision, U.S. Citizenship and Immigration Services—the subagency that adjudicates work authorization requests—said in a statement on Tuesday.

“DHS intends for this rule to reduce the incentive for aliens to remain in the United States after receiving a final order of removal and to strengthen protections for U.S. workers,” according to the proposed measure.

The rule, scheduled for Federal Register publication on Nov. 19, is the latest regulatory action from the Trump administration, which is confronting a short time frame for putting the last pieces of its immigration policy in place prior to President-elect Joe Biden’s Jan. 20 inauguration.

Even with an abbreviated public comment period of 30 days, a final rule would need to be released by Dec. 20 to take effect in January. That compressed timeline holds true for several proposals that would overhaul pieces of the immigration system, including the biometrics proposed rule and the H-1B lottery proposed rule.

In fiscal 2018, 23,600 individuals with a final order of deportation but released on supervision were approved for work authorization, down from 26,735 approvals in fiscal 2017 and 32,264 approvals in fiscal 2016, according to USCIS data.

Narrow Exceptions

The new proposal outlines some scenarios where it will make an exception to the rule, but only if the individual can prove their “economic necessity” for the work permit. Work permits in these cases would only be valid for one year.

People whose removal has been deemed “impracticable” by DHS, meaning their country of origin won’t accept them back or issue travel documents, could be eligible for work permits, according to the proposed rule.

The agency also said that individuals 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 would be similarly exempt.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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