Is It OK to Work While You Are in Removal Proceedings?

Last updated on Sep 6th, 2017

Whether someone is permitted to work while in removal proceedings is an important issue for a variety of reasons.

First, noncitizens who are in removal proceedings, like millions of other individuals in America, need to earn money from work to support themselves and their family. This is an clear reason for the need to work while in removal proceedings.

There are less obvious reasons too.

For example, a noncitizen who wants to change the venue of the removal proceedings must to show “good cause,” and one way a noncitizen demonstrates good cause is by showing that the noncitizen’s employer had previously arranged, prior to the beginning of removal proceedings, to transfer the noncitizen to the jurisdiction to which the noncitizen seeks a change of venue. The air may go out of the sails of this argument for good cause if the noncitizen is not permitted to work in the US in the first place.  Even worse, making the argument might make the immigration judge less inclined to grant a motion for change of venue or a variety of other kinds of discretionary relief (on the basis that the noncitizen, even when in removal proceedings, shows a disregard for US immigration law).

(While many noncitizens work in the US without any work authorization, others work with authorization from government, which is frequently represented by an employment authorization document (EAD). For noncitizens who must apply for work authorization, it is important to recognize that work authorization automatically terminates when the government commences removal proceedings against the noncitizen.)

That being said, working while in removal proceedings is possible for some noncitizens. For instance, a permanent resident who may work in the US because of his status as a permanent resident (and not because he possesses a work permit), may continue to work while in removal proceedings. (Generally, 8 C.F.R. § 274a.12 governs the classes of foreign nationals who are authorized to accept employment within the US.)

Moreover, other individuals might even gain the right to legally work in the US on account of removal proceedings. For instance, a noncitizen who applies for asylum during removal proceedings may apply for work authorization after his or her asylum application has been pending for 150 days.

Also, Cancellation of Removal applicants become eligible to seek work authorization while their cancellation application is pending. (Cancellation of Removal is a kind of relief from removal available to certain individuals.)

While some noncitizens will lose the right to work in the US because of removal proceedings, other will keep the right to work, and still others will gain it.

There is no quick and easy answer to the question of whether a noncitizen is permitted to work while in removal proceedings.

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