In What Circumstances Does Prosecutorial Discretion Provide Work Authorization?


Recently, one of our clients retained us for his defense in removal proceedings. After having explored all possible avenues for relief, we determined that this client was a good candidate for prosecutorial discretion. Among other things, he had a clean criminal record and a length of stay in the United States of nine years, during which he had consistently worked and filed his taxes every year. After we began working on his case, the client asked us whether prosecutorial discretion would provide him work authorization.

Prosecutorial discretion, in and of itself, does not grant work authorization. Nor does it grant any kind of legal status. It only allows you to remain physically present in the United States. It releases you from having to fight your case in court. It allows you to be safe from any future attempts to question your status and put you in removal proceedings, assuming no further crimes are committed on your part.

This does not mean that all clients who obtain prosecutorial discretion are prohibited from obtaining work authorization. Suppose this client was eligible for another form of relief, such as asylum, cancellation of removal, or relief under NACARA. Unlike prosecutorial discretion, these forms of relief, when granted, provide a path to permanent legal status. As a result, applicants for such forms of relief are permitted to apply for and obtain work authorization while their applications are pending.

Now suppose a client in removal proceedings applies for asylum and obtains work authorization. Although the client may have a valid asylum claim, there is no guarantee that her asylum will be granted. Fight her asylum case in court entails the risk of getting a denial and being ordered removed from the United States. As a result, the client may decide that she wants to take a safer route and request prosecutorial discretion. If her request for prosecutorial discretion is granted, her application for asylum will be put on hold. The client will then be permitted to maintain work authorization indefinitely because her asylum application was never denied.

In other words, it is not prosecutorial discretion that provides work authorization. It is the underlying application for relief. If you are not eligible for any forms of relief other than prosecutorial discretion, prosecutorial discretion will not give you work authorization.

Fayad Law, P.C. assists clients with a broad range of immigration-related legal matters. To find out whether you are eligible for work authorization, or to obtain answers to any other immigration-related questions, contact Fayad Law today!

Marlene Ailloud is an associate attorney at Fayad Law, P.C., and assist clients from the Fairfax office.