How the Trump Administration Is Weaponizing Work Permits
The Trump administration’s assault on immigrants is based on what you might call the “rock and a hard place” theory: Stick immigrants between enough rocks and hard places and eventually their only choice is to leave the United States. In addition to the big splashes this administration makes with major immigration crackdowns, it also works quietly by enacting smaller, more insidious policies that make it ever harder for immigrants to remain in the United States.
For instance, last month, on the heels of its reversal of the foreign student ban, the government quietly enacted a policy that immigration officers must weigh “discretionary factors” in potentially denying immigrants the right to work while they apply or wait for green cards. The long-standing informal policy had been to grant applicants the right to work as a matter of course. But immigration officers are now supposed to decide, on their own discretion, whether to deny applicants this right.
At first glance, this might seem like an innocuous change, but the context makes it onerous. United States Citizenship and Immigration Services, the primary agency that decides immigration applications and benefits, is overwhelmed and understaffed. Even before the worldwide pandemic brought by the coronavirus, Congress raised questions about inordinate delays at USCIS. In the law school clinic that I direct and run, our immigration clients routinely wait months, if not years, for decisions from USCIS on their applications. Today, the effects of Covid-19 have led to further delays in the processing of claims. Faced with continued underfunding, USCIS is planning to furlough half of its employees, which will only worsen an already untenable situation.
Against this backdrop, one of the few areas of relief for immigrants navigating our Byzantine process had been the ability to work legally while waiting for an immigration decision. Once certain requirements were met, the immigrant almost always acquired a work card and employment, in recognition of the significant benefit to everyone — the immigrant, their family, our communities.
Now, the Trump administration has suddenly reversed course, quietly posting this new policy as part of its training manual for USCIS officers. Immigration officers — who are already understaffed and short on time — will now spend extra time reviewing applications for “discretionary factors” and deciding whether the applicant should be granted the right to work. It’s unclear how individual officers will interpret this change, but it’s likely that many of them, aware of the administration’s anti-immigrant policies, will interpret the policy to mean they should deny applicants the right to work while their application is processed.
This new rock must be understood in the context of previous hard places that have been systemically and deliberately created to harm immigrants, including the administration’s public charge rule that punishes immigrants for accepting public benefits to which they are entitled, the removal of protections for timely processing of work applications for asylum-seekers, and the rising and exorbitant cost of immigration applications.
Taken together, these rocks and hard places leave the immigrant boxed into an impossible situation with no reasonable choices. One option is to not work and be unable to survive or pay for their applications. Another is to accept benefits that will allow them to survive but might jeopardize their applications. A third is to work for “under the table” pay and face negative consequences of working without authorization. There is one final option — the one the Trump administration hopes immigrants will choose — to leave behind the United States and their potential path to citizenship.
No one should have to make a choice like this.
Since our legal clinic opened three years ago, every single client has acquired employment authorization and worked legally — waiting tables at restaurants, teaching long hours in schools, driving taxis and ride-shares into the night. They cook our food, educate our children and drive us where we need to go. They pay taxes and rent, attend church, and volunteer in our neighborhoods. Our communities are stronger when immigrants work while they go through the process of legal immigration.
Immigration advocates should challenge this policy in court because the regulations do not provide specific authority for the agency to deny employment authorization based solely on discretion. Other policies like this have been successfully challenged — in part because they violate laws that require new rules to be posted and debated publicly under the Administrative Procedures Act.
Even if the challenge is successful, that won’t resolve the problem permanently. The administration could still start over from scratch and go through the formal process and push this through during a second Trump term. The truth is that presidents have enormous power and discretion over immigration, which is why presidential elections are so important to immigrants. The only permanent way to change this policy is to change the president.
In the meantime, it will have a huge impact and wreak havoc on the lives of future Americans.
