[Federal Register Volume 69, Number 146 (Friday, July 30, 2004)]
[Rules and Regulations]
[Pages 45555-45557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16938]



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  Federal Register / Vol. 69, No. 146 / Friday, July 30, 2004 / Rules 
and Regulations  

[[Page 45555]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[BCIS No. 2152-01]
RIN 1615-AA63


Employment Authorization Documents

AGENCY: Bureau of Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Bureau of Citizenship and Immigration 
Services (BCIS) regulations governing issuance of Employment 
Authorization Documents (EADs). Through this rule, BCIS will now 
establish EAD validity periods based on certain criteria, including: 
The applicant's immigration status; general processing time for the 
underlying application or petition; required background checks and 
response times for background checks by other agencies, as necessary; 
other security considerations and factors as deemed appropriate by 
BCIS. BCIS will have discretion to modify EAD validity periods both for 
initial, renewal, and replacement cards. BCIS also will be able to 
establish EAD validity periods for classes of aliens and for 
individuals within those classes whose cases warrant a lesser validity 
period. The rule also removes current regulatory language limiting EAD 
validity periods to one-year increments for certain classes of aliens 
who are required to apply for employment authorization. Finally, the 
rule amends BCIS regulations to reflect that BCIS will issue EADs to 
aliens granted asylum by the Department of Justice, Executive Office of 
Immigration Review (EOIR), with validity periods of up to five years, 
unless otherwise appropriate.

DATES: Effective date: This rule is effective July 30, 2004.
    Comment date: Written comments must be submitted on or before 
September 28, 2004.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Department of Homeland Security, 425 I 
Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference BCIS No. 2152-01 in your correspondence. You 
may also submit comments electronically at: [email protected]. When 
submitting comments electronically, you must include CIS No. 2152-01 in 
the subject box. Comments are available for public inspection at the 
above address by calling (202) 514-3291 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Jonathan Mills, Residence and Status 
Services, Office of Program and Regulations Development, Bureau of 
Citizenship and Immigration Services, Department of Homeland Security, 
425 ``I'' Street, NW., ULLICO Building, Third Floor, Washington, DC 
20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

Who Is Affected by This Rule?

    This interim rule affects aliens who are required to apply for 
employment authorization or, if employment authorized incident to 
immigration status, to apply for evidence of employment authorization. 
This interim rule also affects aliens who have been granted asylum by 
EOIR and wish to obtain evidence of employment authorization.

What Are the Current Requirements for EAD Issuance?

    Under 8 CFR 274a.12(a), certain aliens are authorized employment 
incident to their immigration status (e.g., lawful permanent residents, 
lawful temporary residents, parolees, aliens in Temporary Protected 
Status, etc.). Such aliens are eligible to work in the United States 
regardless of whether they receive an EAD. However, these aliens must 
apply to BCIS to receive an EAD evidencing their employment 
authorization. Under 8 CFR 274a.12(c), certain aliens are required to 
apply for employment authorization before they may begin to work in the 
U.S. (e.g., students seeking to perform optical practical training, 
aliens with pending applications for adjustment of status, etc.). Such 
aliens must apply to BCIS to receive an EAD authorizing them to work in 
the United States, as well as evidencing the fact that they are 
employment authorized.
    With limited exceptions, most classes of aliens who are employment 
authorized under 8 CFR 274a.12(a) or 274a.12(c) are required to apply 
for employment authorization using the Form I-765, Application for 
Employment Authorization. If BCIS approves the Form I-765, it will 
issue an EAD. For certain categories, the current regulations 
specifically limit the EAD validity period to one-year increments. In 
all other instances, and with limited exceptions, BCIS through policy 
has set EAD validity periods at one year.

Why Is BCIS Removing the Current Regulatory and Policy Limitations on 
EAD Validity Periods?

    These regulatory and policy limitations often require an alien 
whose underlying status is longer than one year, or whose underlying 
application will remain pending with BCIS for longer than one year, to 
apply for renewal of the EAD every year, creating a burden on the 
applicant and an additional workload for BCIS. This rule gives BCIS the 
discretion and flexibility to modify EAD validity periods for initial, 
renewal, and replacement cards. BCIS also will establish EAD validity 
periods for classes of aliens and will preserve the discretion to 
establish validity periods of varying lengths for individuals within 
those classes whose cases warrant a lesser validity period. BCIS will 
issue field guidance to ensure that adjudicators use standard criteria 
when exercising their discretion in establishing EAD validity periods.
    For aliens who are employment authorized incident to status, BCIS 
does not contemplate issuing employment authorization documents that 
would expire only upon expiration of the alien's status. BCIS must 
reserve the right to periodically expire such documents and, where 
appropriate, issue new cards. This will allow BCIS to address any 
security concerns and to ensure the integrity of the EADs process by 
preventing fraud or misuse of such documents. BCIS intends to review 
all classes of aliens who are employment authorized to determine a 
general validity period for each class. For example, currently BCIS 
issues

[[Page 45556]]

permanent resident cards (Form I-551) with ten-year validity periods. 
Similarly, BCIS intends to issue EADs to asylees with a validity period 
of five years, unless otherwise appropriate. An expiration date on the 
card reflects only that the card must be renewed, not that the bearer's 
work authorization has expired.

What Does This Rule Implement?

    This interim rule amends 8 CFR 274a.12(a) and (c) to eliminate 
provisions in the regulations that provide a maximum validity period 
for certain EADs. This rule also amends 8 CFR 274a.12(a)(5) to reflect 
that BCIS will issue initial EADs to aliens granted asylum by the EOIR 
with validity periods of up to five years, unless otherwise 
appropriate.

Good Cause Exception

    The Department of Homeland Security (DHS) has determined that good 
cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to make this rule 
effective July 30, 2004, for the following reasons: BCIS is modifying 
the regulations at 8 CFR 274a.12(a)(5) and 274a.13(a) to facilitate 
BCIS' immediate compliance with its statutory obligation under the 
Enhanced Border Security and Visa Entry Reform Act (``Border Security 
Act''), Pub. L. 107-173, 116 Stat. 543, 556-57; 8 U.S.C. 1158(c)(1)(B), 
which became effective in May 2002. The Border Security Act requires 
BCIS to provide asylees with initial evidence of employment 
authorization. BCIS also is removing the regulatory limitations on 
certain classes of one-year maximum validity periods to allow BCIS to 
set more flexible EAD periods. In certain instances, BCIS will be able 
to set validity periods for longer than one year, thereby benefiting 
the aliens and reducing BCIS workload associated with yearly EAD 
issuance. The delay in the implementation of this interim rule for 
consideration of public comments prior to the effective date of the 
rule will serve only to increase the current backlog of EAD 
applications. Accordingly, DHS finds that it would be impracticable and 
contrary to the public interest to delay the implementation of this 
rule to allow the prior notice and comment period normally required 
under 5 U.S.C. 553(b)(B) and(d)(3). DHS nevertheless invites written 
comments on this interim rule and will consider any timely comments in 
preparing a final rule.

Regulatory Flexibility Act

    This rule will have a positive significant economic impact on a 
substantial number of small businesses described in the Regulatory 
Flexibility Act at 5 U.S.C. 605.
    With this rule, DHS addresses security concerns and improves BCIS 
efficiency by giving BCIS more flexibility in determining the 
appropriate validity period for EADs. Due to security concerns, DHS 
does not wish to have EADs issued with a validity period that is 
significantly longer than the immigration status or processing time of 
the application that the EAD is based upon. However, the validity 
period needs to be long enough to significantly lessen the burden 
created by the filing, adjudication, and issuance of EAD renewals. 
Removing this burden will allow BCIS to better focus its policy and 
resources upon improving the security and integrity of EADs and the 
security, integrity, and efficiency of BCIS application processes.
    In accordance with the President's long-term goal of a standard 
BCIS application processing time of six months, this rule is forward-
looking, giving BCIS the flexibility to lessen the validity period of 
affected EADs as BCIS processing times make progress toward and then 
reach the President's goal.
    Considering all of these factors, DHS believes that a flexible 
validity period established by policy and taking into account security 
considerations, application processing times, and other factors is more 
appropriate than the inflexible validity periods contained in the 
regulatory provisions in place prior to this interim rule.
    This change will decrease costs for affected applicants in so far 
as they will be required to pay the $175 filing fee for the I-765, 
Application for Employment Authorization, in order to renew their EAD 
less frequently or, in some situations, not at all.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by DHS to be an economically significant 
regulatory action under Executive Order 12866, section 3(f), Regulatory 
Planning and Review.
    Obtaining and then presenting an EAD to an employer is how many 
aliens verify their identity and employment authorization as required 
by Form I-9, Employment Eligibility Verification. To obtain an EAD, an 
applicant must submit a Form I-765, Application for Employment 
Authorization Document, to the appropriate BCIS service center or 
district office, along with a $175 fee or request for a fee waiver. The 
fee is necessary to comply with Public Law 100-459, which requires BCIS 
to prescribe and collect fees to recover the full cost of processing 
immigration and naturalization applications, petitions, and associated 
support benefits. An applicant who cannot afford to pay the fee may 
submit a fee waiver request by following the instructions in 8 CFR 
103.7(c). Therefore, the cost of filing each EAD renewal application is 
approximately $175.
    This regulation removes regulatory provisions limiting the validity 
period for some EADs. At present, BCIS receives more than 950,000 Form 
I-765 applications for EAD renewal per year. The removal of the 
regulatory provisions limiting EADs to no more than one year of 
validity will have no effect by itself. However, there would be an 
economically significant benefit stemming from the projected BCIS 
policy change to a process where the validity period of these and 
certain other EAD categories are established based on based upon 
security concerns, the underlying application or status, and other 
appropriate factors.
    This policy change would reduce the number of Form I-765 
applications for EAD renewal in the future. BCIS cannot yet estimate 
the magnitude of this reduction because the policy change is still 
under development. However, BCIS does plan to compensate for the lack 
of a yearly EAD renewal application from affected aliens by ensuring 
that certain security and background checks are generally completed 
prior to issuance of EAD that is valid for more than one year.

[[Page 45557]]

Executive Order 13132

    This 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a final rule. This rule does not impose any 
new reporting or recordkeeping requirements under the Paperwork 
Reduction Act. However, as previously stated under Executive Order 
12866, the DHS anticipates that as a result of this regulation there 
will be a reduction in the number of Form I-765 submissions. 
Accordingly, BCIS has submitted the Paperwork Reduction Change 
Worksheet (OMB-83C) to the OMB reflecting the reduction in burden hours 
for Form I-765 and the OMB has approved the changes.

List of Subjects in 8 CFR Part 274a

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

0
Accordingly, part 274a of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

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


0
2. Section 274a.12 is amended by:
0
a. Revising the introductory text of paragraph (a);
0
b. Revising paragraph (a)(5);
0
c. Removing the last sentence in paragraph (a)(15);
0
d. Revising paragraph (c);
0
e. Removing the second sentence in paragraph (c)(9);
0
f. Removing the last sentence in paragraph (c)(10);
0
g. Removing the last sentence in paragraph (c)(16);
0
h. Removing the last sentence in paragraph (c)(20);
0
i. Removing the last sentence in paragraph (c)(24);

0
The revisions read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (a) Aliens authorized incident to status. Pursuant to the statutory 
or regulatory reference cited, the following classes of aliens are 
authorized to be employed in the United States without restrictions as 
to location or type of employment as a condition of their admission or 
subsequent change to one of the indicated classes. Any alien who is 
within a class of aliens described in paragraphs (a)(3), (a)(4), 
(a)(6)-(8), or (a)(10)-(16) of this section, and who seeks to be 
employed in the United States, must apply to the Bureau of Citizenship 
and Immigration Services (BCIS) for a document evidencing such 
employment. BCIS may, in its discretion, determine the validity period 
assigned to any document issued evidencing an alien's authorization to 
work in the United States.
* * * * *
    (5) An alien granted asylum under section 208 of the Act for the 
period of time in that status, as evidenced by an employment 
authorization document, issued by BCIS to the alien. An expiration date 
on the employment authorization document issued by BCIS reflects only 
that the document must be renewed, and not that the bearer's work 
authorization has expired. Evidence of employment authorization shall 
be granted in increments not exceeding 5 years for the period of time 
the alien remains in that status.
* * * * *
    (c) Aliens who must apply for employment authorization. An alien 
within a class of aliens described in this section must apply for work 
authorization. If authorized, such an alien may accept employment 
subject to any restrictions stated in the regulations or cited on the 
employment authorization document. BCIS, in its discretion, may 
establish a specific validity period for an employment authorization 
document, which may include any period when an administrative appeal or 
judicial review of an application or petition is pending.

    Dated: July 20, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-16938 Filed 7-29-04; 8:45 am]
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