Can A Detained Immigrant Get A Work Permit If Their Case Is Delayed?

A detained immigrant may wonder if they can obtain a work permit, also known as an Employment Authorization Document (EAD), if their immigration case is delayed. The answer depends on various factors, including the status of their case, the type of relief they are seeking, and the specific circumstances of their detention.

Eligibility for Work Permit During Immigration Case Delay:

Employment Authorization While in Removal Proceedings:

Detained immigrants involved in removal proceedings may be eligible for a work permit under certain conditions. If the immigrant is in proceedings for a prolonged period or their case is delayed for reasons beyond their control, they may qualify for an EAD.

Prolonged Detention:

If an immigrant has been in detention for more than 180 days without a final order of removal, they may be eligible to apply for a work permit. This eligibility comes from a provision in U.S. immigration law that allows detained individuals to apply for an EAD during prolonged detention, given that the delay is not due to their own actions.

Asylum Applicants:

If a detained immigrant has applied for asylum and their case is delayed, they may be eligible to apply for an EAD after 150 days of waiting for a decision. However, the asylum applicant must not have caused delays themselves (e.g., requesting continuances or postponing hearings).

If the case extends beyond 180 days, the applicant may be eligible for a work permit, depending on the status of their asylum application.

Other Forms of Relief:

If the immigrant is applying for other forms of relief, such as cancellation of removal, adjustment of status, or temporary protected status (TPS), they may also qualify for an EAD depending on the specific circumstances and delays in their case.

Certain categories of applicants, such as those applying for U visa or T visa, may qualify for an EAD as part of their status adjustment or protection process.

How to Apply for a Work Permit During a Delayed Case:

File Form I-765:

To apply for an EAD, the detained immigrant must file Form I-765, Application for Employment Authorization. They must provide evidence of their prolonged detention or the fact that their case is delayed.

Provide Supporting Documentation:

The application will need to include supporting documents, such as proof of the date their detention began, proof of the delay, and any other documents that establish their eligibility for a work permit.

Work with Legal Counsel:

Given the complexities of immigration law, it is important for detained immigrants to seek legal counsel to assist with filing for an EAD. An attorney can help navigate the procedural requirements and ensure that the application is properly submitted.

Challenges and Limitations:

Delays in Processing:

Even if an immigrant is eligible for a work permit due to delays in their case, there may still be additional delays in processing the EAD application. The processing times can vary and may depend on the specific immigration office handling the case.

Eligibility Restrictions:

Not all detained immigrants will automatically qualify for a work permit just because their case is delayed. For example, individuals who are detained due to criminal convictions or those who are not seeking a form of relief that qualifies for an EAD may not be eligible.

Deportation Risk:

While an immigrant is applying for a work permit during a delayed case, they may still face the possibility of deportation if they do not qualify for the relief they seek. It is essential to explore all available legal options with the help of an attorney.

Example:

A detained immigrant from Guatemala who has filed for asylum but faces a delay in their case may be eligible to apply for a work permit after 150 days of waiting. After their asylum case is delayed for over 180 days, they can submit Form I-765 to request an EAD. If their case continues to be delayed, they may continue to be eligible to work while they await the final decision on their asylum application.

Conclusion:

While a detained immigrant may not be automatically granted a work permit during delays in their immigration case, there are certain circumstances under which they can apply for an Employment Authorization Document (EAD). Factors such as the type of relief being sought, the length of detention, and whether the delay is due to the immigrant's actions will determine their eligibility for work authorization.