[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Rules and Regulations]
[Pages 21973-21976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11058]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules 
and Regulations  

[[Page 21973]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 210, 214, 240, 242, 245a, and 274a

[INS No. 1719-95]
RIN 1115 AE16


Rules and Procedures for Filing an Application for Employment 
Authorization

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Immigration and Naturalization Service (INS) publishes 
this rule to inform the public of a change in procedures for filing 
certain employment authorization applications. At present, persons 
seeking work authorization apply either by mailing an application to an 
INS service center or by delivering it to an INS district office. The 
INS intends to expand its direct mailing program, so that more 
categories of applicants can file their work authorization applications 
by mail directly with the service centers. The expansion will enhance 
the agency's ability to adjudicate work authorization applications 
efficiently. This final rule revises the regulations to reflect the 
changed filing procedures. It also makes a technical amendment to the 
regulatory provisions governing work authorization for persons applying 
for suspension of deportation and two technical amendments to the 
regulatory provision governing interim work authorization for asylum 
reform applicants. The instructions that accompany an application for 
work authorization are being revised simultaneously to provide 
comprehensive general information on filing procedures.

EFFECTIVE DATE: This rule is effective June 3, 1995.

FOR FURTHER INFORMATION CONTACT:
Jack Tabaka, Senior Examiner Adjudications Division, Immigration and 
Naturalization Service, 425 I Street NW., Washington, DC 20536, (202) 
616-7432.

SUPPLEMENTARY INFORMATION: The INS announced the expansion of its 
direct mail program in an interim rule published in the Federal 
Register on July 1, 1994 at 59 FR 33903. In that interim rule, the INS 
announced its intent to reduce processing time and the need for 
personal visits to the INS by permitting applicants to file certain 
applications by mail to the service centers. Under INS regulations, an 
applicant generally should file an application in accordance with the 
instructions that accompany the application form. 8 CFR 103.2(a). The 
regulations required employment authorization applicants to file their 
applications with the district director. Many of the references to 
filing with the district director were removed with the publication of 
the July 1, 1994 interim rule to permit applicants to mail applications 
to the service centers. Certain employment authorization regulations 
continue to require that an applicant file an application with the 
district director having jurisdiction over the applicant's place of 
residence. While the interim rule removed many of the references to 
district director and replaced those references with the term 
``director'' so that service center directors could accept such 
applications, further changes to the regulations are necessary to 
accomplish the expansion of the direct mail program. This rule 
eliminates the remaining references to ``district director'' filing, 
consistent with the change in filing procedures announced in the 
interim rule.
    On July 1, 1994 the INS also announced the implementation of a 
pilot direct mail program for persons applying at the Baltimore 
District Office in a Federal Register notice published at 59 FR 33985. 
The INS is reviewing the comments it has received from the public on 
both the interim rule and the direct mail pilot program notice and will 
publish a response in the future.
    Based in part on the addition of new personnel, INS service centers 
are able to accept a greater volume of applications from a greater 
number of categories of employment authorization applicants. This 
change to the employment authorization filing procedures will reduce 
the number of visits to district offices now required to obtain work 
authorization and will permit the INS to further streamline its 
procedures and to improve overall efficiency to its customers. To 
explain more fully the changed filing procedures, the INS has revised 
the instructions that accompany Form I-765, Application for Employment 
Authorization. The INS has received Office of Management and Budget 
approval under the Paperwork Reduction Act for the revised set of 
instructions and is in the process of having the new I-765 package 
published and distributed to its district offices and its form 
distribution centers. The corresponding regulations are revised below 
to direct employment authorization applicants to follow the 
instructions that accompany the employment authorization application 
when determining where to file.
    El Salvadoran and Guatemalan nationals who are eligible for 
benefits under the American Baptist Church v.  Thornburgh, 760 F.Supp. 
796 (N.D. Cal. 1991) (``ABC'') should refer to special filing 
instructions which will supplement the I-765 instructions. Those 
instructions can be obtained visiting local INS offices or by calling 
1-800-755-0777. Under this change in filing procedures, asylum 
applicants generally will file future employment authorization 
applications at the service centers and will no longer be required to 
file at district offices.
    The change in filing procedures is, in the view of the INS, a rule 
of agency procedure or practice. Therefore, it is not subject to the 
notice and comment requirements of 5 U.S.C. 553. The INS publishes this 
rule of procedure or practice in the Federal Register for the guidance 
of the public under 5 U.S.C. 552. The INS intends to provide 
information to the public regarding the new filing procedures through 
its public outreach programs in addition to publication of this rule.
    This rule also makes three technical corrections. On August 23, 
1991, the INS eliminated the requirement under 8 CFR 274a.12(c)(10) 
that applicants for suspension of deportation establish economic 
necessity as a condition of [[Page 21974]] obtaining work 
authorization. 56 FR 41767. Nevertheless, the phrase ``if the alien 
establishes the economic need to work'' was not removed in that section 
and continued to appear in the Code of Federal Regulations. The final 
rule revising the asylum regulations on December 5, 1994 perpetuated 
that mistake. 59 FR 62284. The December 5, 1994 regulations also refer 
mistakenly to asylum applications rather than employment applications 
in a sentence having to do with the availability of interim employment 
authorization. This final rule corrects these two technical errors. In 
addition, the INS has made a technical correction to 
Sec. 274a.13(a)(2), which concerns applications for employment 
authorization filed in connection with an asylum application. The last 
sentence of that section was amended at the publication of the December 
5, 1994 final rule to state that ``[t]he Service Center shall 
adjudicate the application within 30 days of receipt.'' This is correct 
insofar as it reiterates the period under asylum reform for 
adjudicating an initial request by an asylum applicant for employment 
authorization under Sec. 208.7(a)(1). It is incorrect, however, to the 
extent that it appears to apply to applications for renewal or 
replacement of employment authorization, which are discussed in the 
sentence immediately preceding it. As is clear from the preamble to the 
December 5, 1994 final rule, specifically at 59 FR 62291, and from 
Sec. 274a.13(d), the INS is to adjudicate requests for renewal or 
replacement of employment authorization within 90 days, not 30. 
Therefore, the last sentence of Sec. 274a.13(a)(2) has been removed.

Regulatory Flexibility Act

    The Commissioner of the INS, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by 
approving it certifies that it will not have a significant economic 
impact on a substantial number of small entities. This regulation 
merely provides notice to the public of change in filing procedures for 
employment authorization applications by correcting the remaining 
regulatory references to filing with the district director and makes 
two technical corrections to recently published INS regulations. It 
does not change the amount of the application fee though it corrects 
the figure listed currently in the regulations.

Executive Order 12866

    This rule is not considered by the INS to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    This final rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12606

    The Commissioner of the INS certifies that she has assessed this 
rule in light of the criteria in Executive Order 12606 and has 
determined that this regulation will not have an impact on family well-
being.

Paperwork Reduction Act

    The information collection requirement contained in this rule has 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. The clearance number for 
this collection is 1115-0163.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 210

    Aliens, Migrant labor, Reporting and recordkeeping requirements.
8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part240

    Administrative practice and procedure, Immigration.

8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 245a

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557; 3 CFR 1982 Comp., p. 166; 8 CFR part 2.


Sec. 103.6  [Amended]

    2. Section 103.6(a)(2)(ii) is amended by removing the phrase 
``District Director'' and adding the term ``INS'' in its place.
    3. In Sec. 103.6(a)(2)(iii) the first sentence is amended by 
removing ``Sec. 109.1(b)'' and adding ``Sec. 274a.12'' in its place.
* * * * *
    4. In Sec. 103.7 (b)(1), the entry for Form I-765 is revised to 
read as follows:


Sec. 103.7  Fees.

* * * * *
    (b)(1) * * *

    Form I-765. For filing an application for employment 
authorization pursuant to 8 CFR 274a.13--$70, unless otherwise noted 
on the instructions attached to the application form.
* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

    5. The authority citation for part 208 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C. 
9701; 8 CFR part 2.

    6. Section 208.7 is amended by:
    a. In paragraph (a)(1), the sixth sentence, removing the word 
``asylum'' and adding the word ``employment'' in its place;
    b. In paragraph (c), the first sentence of the introductory text, 
removing the phrase ``asylum officer, or district director where 
appropriate'' and adding in its place the phrase ``INS, in accordance 
with the instructions on or attached to the employment authorization 
application'';
    c. In paragraph (c), in the second sentence, removing the phrase 
``asylum [[Page 21975]] officer'' and adding in its place the term 
``INS''; and
    d. In paragraph (e) remove the phrase ``district director, in his 
discretion,'' and add the term ``INS''.

7. PART 210--SPECIAL AGRICULTURAL WORKERS

    8. The authority citation for part 210 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.


Sec. 210.2  [Amended]

    9. In Sec. 210.2(c)(4)(iii), the third sentence is amended by 
removing the words ``A district director'' and adding the words ``The 
INS'' in their place.
    10. Section 210.4(b) is amended by:
    a. Removing in paragraph (b)(1), in the first sentence, the phrase 
``may only be granted by a Service legalization office'' and adding in 
its place the phrase ``be granted by the INS'';
    b. Revising in paragraph (b)(2), the fourth and fifth sentences; 
and
    c. Revising in paragraph (b)(3), the second sentence, to read as 
follows:


Sec. 210.4  Status and benefits.

* * * * *
    (b) * * *
    (2) Employment and travel authorization prior to the granting of 
temporary resident status. * * * Employment and travel authorization 
subsequent to an interview will be granted on the employment 
authorization document, and will be restricted to 6 months duration, 
pending final determination on the application for temporary resident 
status. If a final determination has not been made on the application 
prior to the expiration date of the employment authorization document, 
that date may be extended upon return of the employment authorization 
document by the applicant to the INS office. * * *
    (3) Employment and travel authorization upon grant of temporary 
resident status. * * * The applicant may appear at an INS office, and 
upon surrender of the previously issued Form I-688A or employment 
authorization document will be issued Form I-688, Temporary Resident 
Card. * * *
* * * * *

PART 214--NONIMMIGRANT CLASSES

    11. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    12. Section 214.2 is amended by:
    a. Revising in paragraph (f)(11), introductory text the fourth 
sentence;
    b. Removing in paragraph (f)(11), introductory text the fifth 
sentence;
    c. Removing in paragraph (f)(12), in the second sentence the term 
``director'';
    d. Removing in paragraph (f)(16)(i), introductory text the phrase 
``A Service Director'' and adding in its place the phrase ``The 
Service'';
    e. Removing in paragraph (f)(16)(i)(A), the word ``director'';
    f. Revising paragraph (f)(16)(ii);
    g. Removing in paragraph (j)(1)(v)(A), in the second sentence, the 
phrase ``8 CFR 274a.12(c)(5)'' and adding the phrase ``the Service'' in 
its place;
    h. Removing in paragraph (m)(14)(ii), the second and third 
sentences; and
    i. Removing in paragraph (m)(15), the term ``district director'' 
and adding the term ``Service'' in its place.
    The revised text reads as follows:
Sec. 214.2  Special Requirements for admission, extension, and 
maintenance of status.

 * * * * *
    (f) * * *
    (11) * * * An F-1 student must apply to the INS for the EAD by 
filing the Form 1-765. * * *
 * * * * *
    (16) * * * * *
    (ii) Decision. If the Service reinstates the student, the Service 
shall endorse the Form I-20 A-B to indicate that the student has been 
reinstated, return the I-20 ID to the student, and forward the school 
copy of the form to the Service's processing center for data entry. If 
the Service does not reinstate the student, the student may not appeal 
that decision.
 * * * * *

PART 240--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED 
STATES

    13. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1254a, 1254a note.


Sec. 240.12  [Amended]

    14. In Sec. 240.12 paragraphs (a) and (c) are amended by removing 
the term ``district director'' and adding in its place the term 
``INS''.


Sec. 240.17   [Amended]

    15. In Sec. 240.17(a) the first and third sentences are amended by 
removing the term ``District Office'' and adding in its place the words 
``INS designated office''.

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING AND APPEAL

    16. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.

    17. In Section 242.6, paragraph (e)(5) is revised to read as 
follows:


Sec. 242.6  Family Unity Program.

 * * * * *
    (e) * * *
    (5) Employment authorization. An alien granted benefits under the 
Family Unity Program is authorized to be employed in the United States 
and may apply for an employment authorization document in accordance 
with the instructions accompanying Form I-765, Application for 
Employment Authorization.
 * * * * *

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF 
THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED BY PUBLIC LAW 99-
603, THE IMMIGRATION REFORM AND CONTROL ACT OF 1986, AND PUBLIC LAW 
100-204, SECTION 902

    18. The authority citation for part 245a continues to read as 
follows:

    Authority: 8 U.S.C 1101, 1103, 1255a and 1255a note.


Sec. 245a.2  [Amended]

    19. Section 245a.2 is amended by:
    a. Removing in paragraph (j), in the first sentence the word 
``Legalization'' and also by removing the phrase ``Forms I-688 and I-
688A'' and adding in its place the words ``an employment authorization 
document and Form I-688'';
    b. Removing in paragraph (n)(1), in the first and last sentences, 
the word ``Legalization'';
    c. Revising in paragraph (n)(2)(ii) the third sentence to read as 
set forth below;
    d. Removing in paragraph (n)(3), in the last sentence, the word 
``Legalization''.


Sec. 245a.2  Application for temporary residence.

 * * * * *
    (n) * * *
    (2) * * *
    (ii) * * * [[Page 21976]] 
    The employment authorization document will be given to the 
applicant after an interview has been completed by an immigration 
officer unless a formal denial is issued by the appropriate INS office. 
* * *

 * * * * *

    20. Section 245a.4 is amended by:

    a. Removing in paragraph (b)(10), in the first sentence the phrase 
``Forms I-688A and I-688'' and adding in its place the phrase ``an 
employment authorization document and Form I-688'';

    b. Removing in paragraph (b)(14)(ii)(b), in the third sentence the 
phrase ``Form I-688A, Employment Authorization,'' and adding in its 
place the phrase ``An employment authorization document''; and

    c. Revising in paragraph (b)(14)(iii) the second sentence to read 
as follows:

Sec. 245a.4  Adjustment to lawful resident status of certain nationals 
of countries for which extended voluntary departure has been made 
available.

* * * * *

    (b) * * *

    (14) * * *

    (iii) * * * The alien will be required to return to the appropriate 
INS office, surrender the I-688A or employment authorization document 
previously issued, and obtain Form I-688, Temporary Resident Card, 
authorizing employment and travel abroad.

* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    21. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

Sec. 274a.12  [Amended]

    22. In Sec. 274a.12 paragraph (c)(10), in the first sentence is 
amended by removing the phrase ``, if the alien establishes the 
economic need to work''.

    23. In Sec. 274a.13, paragraph (a) is revised to read as follows:

274a.13  Application for employment authorization.

    (a) General. Aliens authorized to be employed under 
Sec. 274a.12(a)(3)-(8) and (10)-(13) must file an Application for 
Employment Authorization (Form I-765) in order to obtain documentation 
evidencing this fact.

    (1) Aliens who may apply for employment authorization under 
Sec. 274a.12(c) of this part, except for those who may apply under 
Sec. 274a.12(c)(8), shall file a Form I-765 with the director having 
jurisdiction over applicant's residence, or the director having 
jurisdiction over the port of entry at which the alien applies, or with 
such other Service office as the Commissioner may designate. The 
approval of applications filed under Sec. 274a.12(c) of this part, 
except for Sec. 274a.12(c)(8), shall be within the discretion of the 
director or such other officer as the Commissioner may designate. Where 
economic necessity has been identified as a factor, the alien must 
provide information regarding his or her assets, income, and expenses 
in accordance with instructions on Form I-765.

    (2) An initial Application for Employment Authorization (Form I-
765) for asylum applicants under 274a.12(c)(8) of this part shall be 
filed in accordance with instructions on or attached to Form I-765 with 
the appropriate Service Center or with such other Service office as the 
Commissioner may designate. The applicant also must submit a copy of 
the underlying application for asylum or withholding of deportation, 
together with evidence that the application has been filed in 
accordance with Secs. 208.3 and 208.4 of this chapter. An application 
for an initial employment authorization or for a renewal of employment 
authorization filed in relation to a pending claim for asylum shall be 
adjudicated in accordance with Sec. 208.7 of this chapter. An 
application for renewal or replacement of employment authorization 
submitted in relation to a pending claim for asylum, as provided in 
Sec. 208.7 of this chapter, shall be filed, with fee or application for 
waiver of such fee, in accordance with the instructions on or attached 
to Form I-765 with the appropriate Service Center or with such other 
Service office as the Commissioner may designate.

* * * * *

    Dated: May 1, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-11058 Filed 5-2-95; 8:45 am]

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