[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
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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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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