First Class Immigration

Employment Authorization While in Removal Proceedings: Can You Get a Work Permit (EAD)?

For many immigrants placed in removal proceedings, one of the most urgent concerns is whether they can legally work while their case is pending. The answer is often yes, particularly for individuals pursuing Adjustment of Status (AOS) before the immigration court.

Understanding why and how a work permit (Employment Authorization Document or EAD) may be available requires a careful review of adjustment eligibility under the Immigration and Nationality Act and the filing rules for Form I-765.

This article explains the legal framework and practical steps for obtaining employment authorization while in removal proceedings.

Adjustment of Status and Work Authorization

Individuals seeking lawful permanent residence through Adjustment of Status (AOS) typically file:

Form I-485 – Application to Register Permanent Residence or Adjust Status

Form I-765 – Application for Employment Authorization

When an adjustment applicant files Form I-765 under the correct eligibility category, they may receive a work permit while their green card application is pending.

For applicants not in removal proceedings, the process is straightforward: both forms are filed with U.S. Citizenship and Immigration Services (USCIS).

However, when an individual is already in removal proceedings before the immigration court, the filing process is slightly different.

Filing for an EAD While in Removal Proceedings

When a person seeks adjustment of status before the immigration court, the Form I-485 is filed with the court, which is part of the Executive Office for Immigration Review (EOIR) under the U.S. Department of Justice.

Even though the adjustment application is pending with the court:

Form I-765 must still be filed with USCIS

The applicant must provide proof that the I-485 has been filed with the immigration court

This proof typically includes:

A stamped copy of the filed I-485

The immigration court filing receipt or cover page

Evidence the adjustment application is pending

When properly filed, the applicant may qualify for employment authorization under Category (c)(9), which applies to individuals with a pending adjustment of status application.

The Legal Foundation: INA §245

Adjustment of status eligibility is governed primarily by Section 245 of the Immigration and Nationality Act.

Two subsections are particularly important.

1. INA §245(a): The Manner of Entry Requirement

Section 245(a) governs the basic eligibility requirements for adjustment of status.

To adjust status under this provision, an applicant must generally have been:

Admitted

Inspected

Paroled

If one of these three conditions is satisfied, the individual may qualify for adjustment of status assuming other requirements are met.

This is why parole can be extremely important. Even individuals who originally entered the United States without inspection may become eligible for adjustment if they later receive parole.

2. INA §245(c): Bars to Adjustment

Section 245(c) describes bars to adjustment of status, such as:

Overstaying a visa

Violating the terms of a visa

Certain unauthorized employment

However, many of these bars do not apply to immediate relatives of U.S. citizens, which is why adjustment of status is often still possible even after periods of unlawful presence.

The Role of the I-601A Provisional Waiver

Many individuals who entered the United States without inspection (EWI) cannot adjust status under §245(a) because they were never admitted or paroled.

In those cases, they must typically pursue consular processing abroad.

However, leaving the United States after significant unlawful presence triggers:

A 10-year unlawful presence bar

To address this issue, Congress created the I-601A Provisional Waiver.

This waiver allows eligible applicants to:

Apply for a waiver while still in the United States

Wait for the waiver to be approved

Leave the U.S. only briefly for the consular interview

Without the I-601A waiver, applicants historically had to wait outside the United States for the entire waiver adjudication, which could result in prolonged family separation.

Why the EAD Matters in Removal Proceedings

Removal proceedings can last months or even years. During that time, individuals often need the ability to work legally in order to:

Support their families

Maintain stability during litigation

Pay legal and court-related expenses

For adjustment applicants in removal proceedings, the (c)(9) work permit category is therefore critical.

Once the I-765 is approved, the applicant receives:

An Employment Authorization Document (EAD)

Eligibility to obtain a Social Security number

The ability to work lawfully while the case is pending

Common Scenario: Adjustment Before the Immigration Judge

A typical case might look like this:

A noncitizen is placed into removal proceedings.

They become eligible for adjustment of status through a U.S. citizen spouse.

The I-485 is filed with the immigration court.

The applicant files Form I-765 with USCIS under category (c)(9).

Proof of the pending adjustment application is submitted.

USCIS issues an EAD while the adjustment case proceeds before the judge.

This process allows the applicant to remain legally employed during the pendency of the case.

Strategic Importance for Immigration Cases

For immigration attorneys and applicants alike, understanding the relationship between:

Adjustment of Status

Removal Proceedings

Employment Authorization

is critical for case strategy.

Properly filing the I-765 with proof of a pending I-485 before the immigration court can ensure that clients remain able to work lawfully during what is often a lengthy legal process.

Final Thoughts

Being placed in removal proceedings does not automatically eliminate the ability to obtain a work permit.

When a noncitizen has a properly filed adjustment of status application, they may still qualify for an Employment Authorization Document under category (c)(9), even if the case is pending before the immigration court rather than USCIS.

Understanding these procedural nuances can make a significant difference in the stability and financial security of families navigating the immigration system.