[Federal Register Volume 74, Number 34 (Monday, February 23, 2009)]
[Rules and Regulations]
[Pages 7993-7995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3801]



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  Federal Register / Vol. 74, No. 34 / Monday, February 23, 2009 / 
Rules and Regulations  

[[Page 7993]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 274a

[CIS No. 2463-08; Docket No. USCIS-2008-0072]
RIN 1615-AB78


Employment Authorization and Verification of Aliens Enlisting in 
the Armed Forces

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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

SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations governing the employment authorization of aliens and the 
employment eligibility verification process. This rule provides for 
employer-specific employment authorization for certain aliens lawfully 
enlisted into the U.S. Armed Forces (Armed Forces), and those whose 
enlistment the Secretary with jurisdiction over such Armed Force has 
determined would be vital to the national interest. This rule also adds 
the military identification card to the list of documents acceptable 
for establishing employment eligibility and identity for the Employment 
Eligibility Verification Form (Form I-9), but only for use by the Armed 
Forces to verify employment eligibility of aliens lawfully enlisted in 
the Armed Forces. This rule is necessary to conform DHS regulations to 
existing statutory authorities regarding the enlistment of aliens by 
the Armed Forces.

DATES: Effective date. This rule is effective on February 23, 2009.

FOR FURTHER INFORMATION CONTACT: Philip B. Busch, Office of Chief 
Counsel, U. S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Ave., NW., Suite 4210, Washington, 
DC 20529, telephone (202) 272-1400 or e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    Section 504 of Title 10, U.S. Code, provides citizenship and 
immigration status eligibility criteria for enlistment in the Armed 
Forces. The Armed Forces are defined under 10 U.S.C. 101(a)(4) to mean 
only the U.S. Army, Navy, Air Force, Marine Corps, and Coast Guard. 
Under section 504, only citizens and noncitizen nationals of the United 
States; lawful permanent resident aliens; and certain nationals of the 
Federated States of Micronesia, the Republic of the Marshall Islands, 
and Palau who are admissible as nonimmigrants under the Compacts of 
Free Association with those nations, are eligible to enlist in the 
Armed Forces. See 10 U.S.C. 504(b)(1). Section 504(b)(2), however, also 
authorizes the Secretary of any Armed Force to enlist other aliens ``if 
the Secretary determines that such enlistment is vital to the national 
interest.'' Id. section 504(b)(2).
    Section 274A of the Immigration and Nationality Act (INA), 8 U.S.C. 
1324a, prohibits the employment of persons who are not authorized to be 
employed under U.S. immigration laws, and requires employers to verify 
the identity and employment eligibility of each individual they hire 
for employment in the United States. Under DHS regulations governing 
employment authorization (8 CFR 274a.12) and employment eligibility 
verification (8 CFR 274a.2), aliens who are lawfully enlisted in the 
Armed Forces under 10 U.S.C. 504(b)(1) are also employment authorized. 
DHS regulations, however, do not currently authorize employment for 
aliens that enlist in the Armed Forces under section 504(b)(2) 
following a determination by a Secretary of one of the Armed Forces 
that the enlistment of such aliens is vital to the national interest. 
This final rule closes that gap and extends employment authorization to 
any alien lawfully enlisted in the Armed Forces under 10 U.S.C. 504. In 
order to enable certain aliens who are not otherwise employment 
authorized to complete the enlistment process, this final rule 
authorizes an alien to accept employment with a specific Armed Force 
prior to completing the enlistment process. An alien is so authorized 
when the Secretary of an Armed Force determines that the alien's 
enlistment would be vital to the national interest.

II. Regulatory Changes

A. Employer-Specific Employment Authorization

    This final rule provides that any person lawfully enlisted in the 
Armed Forces under the authority of 10 U.S.C. 504 has employer-specific 
work authorization to serve in the Armed Forces. See new 8 CFR 
274a.12(d). The rule clarifies that the new employer-specific work 
authorization is for those aliens who do not otherwise have work 
authorization that would permit enlistment, either because they do not 
have work authorization at all, or because their work authorization is 
employer-specific for an employer other than the Armed Forces. In 
particular, this rule will conform work authorization under the INA and 
DHS regulations to such use as the Armed Forces may make of 10 U.S.C. 
504(b)(2) in the national interest.
    In short, the final rule provides that if an Armed Force lawfully 
enlists any alien under the authority of 10 U.S.C. 504 who is not 
otherwise work authorized, the alien enlisted will be considered by DHS 
to have work authorization for the purpose of, and limited to, that 
enlistment. The final rule's reference to lawful enlistment under 10 
U.S.C. 504 is meant to ensure that it is not construed to provide work 
authorization to any alien who is falsely or fraudulently enlisted in 
the Armed Forces through error or misrepresentation of a qualifying 
section 504 status. The rule also provides the same limited employment 
authorization to certain aliens prior to their enlistment in the Armed 
Forces. So that these individuals may complete the enlistment process, 
they are provided with this limited employment authorization when it is 
determined that their enlistment would be vital to the national 
interest under 10 U.S.C. 504.
    The final rule provides work authorization, but does not confer 
nonimmigrant or other immigration status to members of the Armed Forces 
by virtue of their enlistment. DHS notes, however, that under section 
284 of the INA, 8 U.S.C. 1354, and 8 CFR 235.1(c), alien members of the 
Armed Forces

[[Page 7994]]

traveling under official orders or permit are not subject to the 
removal provisions of the INA. Further, under section 329 of the INA, 8 
U.S.C. 1440, and Executive Order 13269 (July 3, 2002), present members 
of the Armed Forces with honorable service on active duty and 
satisfying other statutory requirements are immediately eligible to 
apply for naturalization.
    This final rule provides work authorization to serve in the Armed 
Forces as an alien, during which time the alien may apply for 
naturalization. The rule does not authorize employment for any employer 
other than the Armed Forces or for any purpose other than lawful 
enlistment in one of the Armed Forces.

B. Form I-9 Completion.

    Form I-9 has three categories of documents that may be accepted, 
alone or in combination, by employers for employment eligibility 
verification:
    (1) List A--documents that establish both identity and employment 
eligibility (e.g., U.S. passport; Form I-551, ``Permanent Resident 
Card;'' and Form I-766, ``Employment Authorization Document'');
    (2) List B--documents that establish only identity (e.g., State-
issued driver's license or identification card); and
    (3) List C--documents that establish only employment eligibility 
(e.g., State-issued birth certificate and social security account 
number card).

See INA sec. 274A(b)(1)(B), (C) and (D), 8 U.S.C. 1324a(b)(1)(B), (C) 
and (D); 8 CFR 274a.2(b)(1)(v)(A), (B) and (C). An individual must 
present to his or her employer either one document from List A or one 
document each from List B and List C.
    The documents authorized for the purposes of verifying identity and 
employment eligibility on the Form I-9 do not adequately address 
documents that are available to aliens enlisted in the military. In 
particular, aliens from the Pacific Island nations described in section 
10 U.S.C. 504(b)(1)(C) who are enlisted abroad, or aliens enlisted 
under section 10 U.S.C. 504(b)(2), may not have the appropriate 
documentation required on the Form I-9. This final rule provides an 
additional option that an Armed Force may accept to verify both 
employment eligibility and identity under List A of the Form I-9. In 
the case of an individual lawfully enlisted for military service only, 
a military identification card issued by the Armed Forces may now serve 
as a List A document. See new 8 CFR 274a.2(b)(1)(v)(A)(7).
    DHS has determined that in the limited situation of verifying 
employment authorization for military enlistment, which includes a 
background check to verify citizenship and immigration status, it is 
appropriate to designate the military identification card as a List A 
document for Form I-9 purposes. DHS has determined that military 
identification cards contain a photograph and other personal 
identification sufficient for verification purposes, and that, along 
with the background check, they contain adequate security features, 
thus complying with the statutory requirements in section 
274A(b)(1)(B)(ii) of the INA, 8 U.S.C. 1324a(b)(1)(B)(ii), for 
designating List A documents. The final rule does not change or modify 
the Form I-9 document list for private or public employers other than 
the Armed Forces; private or public employers other than the Armed 
Forces may not accept a military identification card as a List A 
document to satisfy documentation requirements of the Form I-9. For 
other employers, a military identification card may continue to be 
accepted only as a List B identification document as currently provided 
in 8 CFR 274a.2(b)(1)(v)(B)(1)(iv).

III. Regulatory Requirements

A. Administrative Procedure Act

    This rule solely addresses military personnel matters relating to 
the enlistment of members of the Armed Forces. This rule therefore is 
exempt from notice and comment rulemaking procedures under the military 
function exception set forth in section 553(a)(1) of the Administrative 
Procedure Act (APA), 5 U.S.C. 553(a)(1). For the same reason, this rule 
is effective immediately upon publication in the Federal Register.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBRFA), requires an agency to prepare and make available to the public 
a regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). RFA analysis is not required when a 
rule is exempt from notice and comment rulemaking requirements under 
the Administrative Procedure Act. See 5 U.S.C. 601(2), 603(a) and 
604(a). This rule involves a military function of the United States and 
therefore is exempt from notice and comment rulemaking requirements 
pursuant to 5 U.S.C. 553(a)(1). DHS therefore is not required to 
provide an RFA analysis for this rule.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the UMRA is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon state, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. This rule would not result in such an expenditure.

D. 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. 5 U.S.C. 804. 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 the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

E. Executive Order 12866

    Section 3(d)(2) of Executive Order 12866 provides that regulations 
that pertain to a military function of the United States are not 
subject to its review requirements. Accordingly, this final rule has 
not been reviewed by the Office of Management and Budget.

F. Executive Order 13132

    This rule would have no 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, this

[[Page 7995]]

rule does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

G. Paperwork Reduction Act

    This final rule does not modify any collection of information as 
defined in 44 U.S.C. 3502(3), and it will not require a revision to the 
Form I-9 (OMB Control Number 1615-0047).

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.2 is amended by:
0
a. Adding and reserving paragraph (b)(1)(v)(A)(6), and by
0
b. Adding a new paragraph (b)(1)(v)(A)(7).
    The additions read as follows:


Sec.  274a.2  Verification of identity and employment authorization.

* * * * *
    (b) * * *
    (1) * * *
    (v) * * *
    (A) * * *
    (6) [Reserved]
    (7) In the case of an individual lawfully enlisted for military 
service in the Armed Forces under 10 U.S.C. 504, a military 
identification card issued to such individual may be accepted only by 
the Armed Forces.
* * * * *

0
3. Section 274a.12 is amended by redesignating paragraph (d) as 
paragraph (e) and adding a new paragraph (d) to read as follows:


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

* * * * *
    (d) An alien lawfully enlisted in one of the Armed Forces, or whose 
enlistment the Secretary with jurisdiction over such Armed Force has 
determined would be vital to the national interest under 10 U.S.C. 
504(b)(2), is authorized to be employed by that Armed Force in military 
service, if such employment is not otherwise authorized under this 
section and the immigration laws. An alien described in this section is 
not issued an employment authorization document.

Janet Napolitano,
Secretary.
[FR Doc. E9-3801 Filed 2-19-09; 11:15 am]
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