[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Proposed Rules]
[Pages 74196-74253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25473]



[[Page 74195]]

Vol. 85

Thursday,

No. 224

November 19, 2020

Part VIII





 Department of Homeland Security





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8 CFR Parts 106, 241 and 274a





Employment Authorization for Certain Classes of Aliens With Final 
Orders of Removal; Proposed Rule

  Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / 
Proposed Rules  

[[Page 74196]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 241 and 274a

[CIS No. 2653-19; DHS Docket No. USCIS-2019-0024]
RIN 1615-AC40


Employment Authorization for Certain Classes of Aliens With Final 
Orders of Removal

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is proposing to 
eliminate employment authorization eligibility for aliens who have 
final orders of removal but are temporarily released from custody on an 
order of supervision with one narrow exception. DHS proposes to 
continue to allow employment authorization for aliens for whom DHS has 
determined that their removal is impracticable because all countries 
from whom travel documents have been requested have affirmatively 
declined to issue a travel document and who establish economic 
necessity. DHS intends for this rule to reduce the incentive for aliens 
to remain in the United States after receiving a final order of removal 
and to strengthen protections for U.S. workers.
    DHS is also proposing to clarify that aliens who have been granted 
a deferral of removal based on the United States' obligations under the 
United Nations (U.N.) Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment (CAT) are similarly 
situated to aliens granted withholding of removal under the Immigration 
and Nationality Act (INA) and regulations implementing CAT, in that 
they cannot be removed to the country in question while the order 
deferring their removal is in place. As such, DHS is proposing to treat 
aliens granted CAT deferral of removal as employment authorized based 
upon the grant of deferral of removal.

DATES: Written comments on this proposed rulemaking must be submitted 
on or before December 21, 2020. Comments on the collection of 
information (see Paperwork Reduction Act section) must be received on 
or before January 19, 2021. Comments on both the proposed rulemaking 
and the collection of information received on or before December 21, 
2020 will be considered by DHS and USCIS. Only comments on the 
collection of information received between December 21, 2020 and 
January 19, 2021 will be considered by DHS and USCIS. Note: Comments 
received after December 21, 2020 on the proposed rulemaking rather than 
those specific to the collection of information will not be considered 
by DHS and USCIS.

ADDRESSES: You may submit comments on the entirety of this proposed 
rulemaking package, identified by DHS Docket No. USCIS-2019-0024, 
through the Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the website instructions for submitting comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS or USCIS officials, will not be 
considered comments on the proposed rule and may not receive a response 
from DHS. Please note that DHS and USCIS cannot accept any comments 
that are hand-delivered or couriered. In addition, USCIS cannot accept 
comments contained on any form of digital media storage devices, such 
as CDs/DVDs and USB drives. Due to COVID-19, USCIS is also not 
accepting mailed comments at this time. If you cannot submit your 
comment by using http://www.regulations.gov, please contact Samantha 
Deshommes, Chief, Regulatory Coordination Division, Office of Policy 
and Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, by telephone at (240) 721-3000 for alternate 
instructions.

FOR FURTHER INFORMATION CONTACT: Michael J. McDermott, Chief, Security 
and Public Safety Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, MD, Camp Springs 20746; Telephone (240) 
721-3000.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Major Provisions of the Regulatory Action
    B. Summary of Costs, Benefits, and Transfer Payments
III. Purpose of the Proposed Rule
    A. Enforcement Priorities
    B. Strengthening Protections for U.S. Workers
    C. Exception to Employment Authorization Bars
IV. Background
    A. Legal Authority
    B. Detention and Release of Aliens Ordered Removed
    C. Repatriation of Aliens Ordered Removed
    D. Withholding of Deportation or Removal Under the INA and 
Regulations Implementing CAT and Deferral of Removal Under 
Regulations Implementing CAT
    E. Employment Authorization
    F. Biometric Submission
V. Discussion of the Proposed Rule
    A. Eligibility for Employment Authorization for Aliens on Orders 
of Supervision
    B. USCIS Evidentiary Requirements
    C. Biometric Submission and Criminal History
    D. Aliens Granted Deferral of Removal Under the Regulations 
Implementing CAT
    E. Effective Date of the Final Rule
    F. Additional Amendments
VI. Statutory and Regulatory Requirements
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    1. Summary
    2. Background and Purpose of the Proposed Rule
    3. Population
    4. Costs and Benefits of the Proposed Rule
    B. Regulatory Flexibility Act (RFA)
    C. Congressional Review Act (CRA)
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Executive Order 13175 Consultation and Coordination With 
Indian Tribal Governments
    H. Family Assessment
    I. National Environmental Policy Act (NEPA)
    J. Paperwork Reduction Act (PRA)
    K. Signature

Table of Abbreviations

AEDPA--Anti-Terrorism and Effective Death Penalty Act
ASC--Application Support Center
BAHA--Buy American and Hire American (Executive Order 13788)
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CAT--Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment
CFR--Code of Federal Regulations
DCAT--Deferral of Removal Under the Regulations Implementing the 
Convention Against Torture
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
DOL--U.S. Department of Labor
DOS--Department of State
E.O.--Executive Order
EAD--Employment Authorization Document
EOIR--Executive Office for Immigration Review
E-Verify--Employment Eligibility Verification System
FARRA--Foreign Affairs Reform and Restructuring Act of 1988
FBI--The Federal Bureau of Investigation
Form I-9--Employment Eligibility Verification
Form I-765--Application for Employment Authorization

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Form I-765WS--Form I-765, Employment Authorization Worksheet
FY--Fiscal Year
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IJ--Immigration Judge
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
LCA--Labor Condition Application
LPR--Lawful Permanent Resident
MOU-Memorandum of Understanding
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
RFE--Request for Evidence
Secretary--Secretary of Homeland Security
SSA--Social Security Administration
TLC--Temporary Labor Certification
TNC--Tentative Non-Confirmation
U.N.--United Nations
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, comments, and arguments 
on all aspects of this proposed rule. DHS also invites comments that 
relate to the economic, legal, environmental, or federalism effects 
that might result from this proposed rule. Comments must be submitted 
in English, or an English translation must be provided. Comments that 
will provide the most assistance to U.S. Citizenship and Immigration 
Services (USCIS) in implementing these changes will reference a 
specific portion of the proposed rule, explain the reason for any 
recommended change, and include data, information, or authority that 
supports such recommended change.
    Instructions: If you submit a comment, you must include the agency 
name and the DHS Docket No. USCIS-2019-0024 for this rulemaking. 
Regardless of the method used for submitting comments or material, all 
submissions will be posted, without change, to the Federal eRulemaking 
Portal at http://www.regulations.gov, and will include any personal 
information you provide. Therefore, submitting this information makes 
it public. You may wish to consider limiting the amount of personal 
information that you provide in any voluntary public comment submission 
you make to DHS. DHS may withhold information provided in comments from 
public viewing that it determines may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy and Security Notice that is available via the link in the 
footer of http://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to http://www.regulations.gov, referencing DHS 
Docket No. USCIS-2019-0024. You may also sign up for email alerts on 
the online docket to be notified when comments are posted or a final 
rule is published.

II. Executive Summary

    DHS seeks to align its discretionary authority to grant employment 
authorization to aliens ordered removed and temporarily released on 
orders of supervision with its current immigration enforcement 
priorities, which include the prompt removal of aliens who have 
received a final order of removal from the United States,\1\ and the 
Administration's efforts to strengthen protections for U.S. workers. 
DHS is proposing to modify its regulations in the following areas:
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    \1\ This proposed rule does not affect DHS's authority to 
release aliens from detention or to remove aliens from the United 
States pursuant to sections 235, 236, 238, 240, and 241 of the INA, 
8 U.S.C. 1225, 1226, 1228, 1229a, and 1231.
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     Employment authorization eligibility for aliens 
temporarily released on orders of supervision: DHS proposes to 
eliminate eligibility for discretionary employment authorization under 
8 CFR 274a.12(c)(18) for aliens who have final orders of removal and 
are temporarily released from custody on orders of supervision pending 
removal except for aliens for whom DHS has determined that their 
removal is impracticable because all countries from whom DHS requested 
travel documents have affirmatively declined to issue such documents. 
DHS intends to require such aliens to establish economic necessity for 
employment during the period of the order of supervision.\2\ Consistent 
with 8 CFR 274a.12(e), USCIS would use the Federal Poverty Guidelines 
under Title 45 of the U.S. Code to determine whether there is an 
economic necessity for employment authorization. Additionally, DHS 
proposes to expand the current nonexhaustive list of factors it 
considers when adjudicating an application for employment authorization 
for aliens temporarily released on an order of supervision to include: 
(1) The alien's compliance with the order of supervision conditions and 
(2) the alien's criminal history, including but not limited to any 
criminal arrests, charges, or convictions subsequent to the alien's 
release from custody on an order of supervision.
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    \2\ Currently, economic necessity is only a discretionary 
factor. See 8 CFR 274a.12(c)(18)(i).
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     Additional requirements for renewal employment 
authorization for aliens temporarily released on orders of supervision: 
DHS further proposes to allow aliens temporarily released on an order 
of supervision who apply for a renewal of their employment 
authorization to have it renewed only if the alien: (1) Continues to 
meet the exception noted above, (2) demonstrates economic necessity, 
(3) establishes that he or she warrants a favorable exercise of 
discretion, and (4) establishes that he or she is employed by a U.S. 
employer who is a participant in good standing in DHS's employment 
eligibility verification system (E-Verify) by providing the U.S. 
employer's name as listed in E-Verify and the employer's E-Verify 
Company Identification Number. An alien who fails to establish that he 
or she is employed by an E-Verify employer would not be eligible for a 
renewal EAD. DHS will consider an E-Verify employer to be a participant 
in good standing if, at the time of filing of the application for 
renewal of employment authorization, the employer: (1) Has enrolled in 
E-Verify with respect to all hiring sites in the United States that 
employ an alien temporarily released on an order of supervision who has 
received employment authorization under this rule; (2) is in compliance 
with all requirements of E-Verify, including but not limited to 
verifying the employment eligibility of newly hired employees at such 
hiring sites; and (3) continues to be a participant in good standing in 
E-Verify at any time during the employment of the alien temporarily 
released on an order of supervision who has received employment 
authorization pursuant to this rule.
     Limit the Employment Authorization Document (EAD) validity 
period for aliens temporarily released on orders of supervision: DHS 
proposes to limit the validity period for an EAD issued under 8 CFR 
274a.12(c)(18) (``(c)(18) EADs'') to one year, regardless of whether 
the alien seeks an initial or renewal EAD.
     Biometrics submission by aliens temporarily released on 
orders of supervision: DHS proposes to require that biometrics be 
submitted and a biometric services fee be paid for by aliens seeking 
discretionary employment authorization under 8 CFR 274a.12(c)(18) 
(``(c)(18) EAD applicants''). Currently, all (c)(18) EAD

[[Page 74198]]

applicants submit biometrics to USCIS \3\ to, among other things, 
assist in identity verification and facilitate (c)(18) EAD card 
production. This rule proposes to codify that requirement and require 
that they pay a biometric services fee of $30. See proposed 8 CFR 
106.2(a)(32)(i)(C).\4\ In addition, DHS proposes to use biometrics 
submitted by (c)(18) EAD applicants to screen for criminal history. See 
proposed 8 CFR 241.4(j)(3).
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    \3\ At present, biometrics collection generally refers to the 
collection of fingerprints, photographs, and signatures. See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including 
fingerprints, photographs, and digital signature) (last visited May 
15, 2020).
    \4\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, 85 FR 46788 (Aug. 3, 2020) (Fee Rule). The Fee Rule 
was scheduled to go into effect on October 2, 2020. On September 29, 
2020, the U.S. District Court for the Northern District of 
California issued a nationwide injunction, which prevents DHS from 
implementing the Fee Schedule Final Rule. See, Immigrant Legal 
Resource Center v. Wolf, No. 4:20-cv-5883 (N.D. Cal. Sept. 29, 
2020). DHS intends to vigorously defend this lawsuit and is not 
changing the baseline for this proposed rule as a result of the 
litigation.
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     Provide aliens granted deferral of removal under the 
regulations implementing the CAT employment authorization based on the 
grant of deferral: Finally, DHS proposes to amend its regulations at 8 
CFR 274a.12(a)(10) to include aliens who have been granted deferral of 
removal based on the regulations implementing the United States' 
obligations under the CAT \5\ in the category of aliens who are not 
required to apply for employment authorization to work, but will be 
recognized as employment authorized based on the grant of deferral of 
removal.\6\ Currently, aliens who are granted withholding of removal 
under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or CAT under 8 
CFR 208.16 and 1208.16, are employment authorized based solely on the 
grant of withholding. They are not required to apply for employment 
authorization but may obtain an EAD if they wish to have a document 
reflecting that they are employment authorized by virtue of the grant 
of withholding. However, DHS's regulations do not clearly indicate that 
aliens who are granted CAT deferral of removal \7\ fall within the 
category of aliens who should be employment authorized based on the 
grant of deferral rather than having to apply for employment 
authorization like other aliens under 8 CFR 274a.12(c). DHS proposes to 
amend the regulations to make this clarification.
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    \5\ See 8 CFR 208.16-208.18 and 1208.16-1208.18.
    \6\ If the alien wants a document to reflect that he or she is 
employment authorized pursuant to the grant of deferral, the alien 
will need to apply for an EAD with USCIS.
    \7\ CAT deferral of removal is a form of protection from removal 
similar to withholding under the regulations implementing CAT in 
that an alien cannot be removed to the country with respect to which 
a deferral order is in place.
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     Specify the effective date: DHS proposes to apply changes 
made by this rule only to initial and renewal applications filed on or 
after the effective date of the final rule. DHS proposes to allow 
aliens temporarily released on an order of supervision who are already 
employment authorized prior to the final rule's effective date to 
remain employment authorized until the expiration date on their EAD, 
unless their employment authorization is terminated or revoked earlier 
than the expiration date. USCIS would continue processing any pending 
application for a replacement EAD received prior to the effective date 
and would continue to receive new applications for replacement EADs 
because those adjudications are not considered a new grant of 
employment authorization but a replacement of an EAD based on a 
previously authorized period of employment prior to the effective date 
of the final rule.

A. Major Provisions of the Regulatory Action

    DHS proposes the following regulatory amendments:
     8 CFR 106.2, Fees. DHS proposes to amend 8 CFR 
106.2(a)(32)(i) to require that aliens who are subject to a final order 
of removal and temporarily released on an order of supervision pay a 
$30 biometric services fee in addition to the filing fee for an 
application for employment authorization under 8 CFR 274a.12(c)(18).
     Several provisions in subpart A of part 241. DHS is 
amending 8 CFR 241.4, 241.5, and 241.13 to remove obsolete references 
to former Immigration and Naturalization Service (INS) agency titles 
and replace them with the appropriate DHS component names. The 
amendments also update the section to correctly reflect the DHS 
components with authority over orders of supervision and issuance of 
EADs. The amendments to 8 CFR 241.4 would also codify requirements for 
aliens who are applying for initial and renewal employment 
authorization under the (c)(18) category to submit biometrics at an ASC 
and pay the associated biometric services fee.
     8 CFR 274a.12, Classes of aliens authorized to accept 
employment. The amendments to this section clarify that 8 CFR 
274a.12(a)(10) covers aliens granted withholding of removal either 
based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or on the 
regulations implementing U.S. obligations under the CAT. The amendments 
to this section also add aliens granted deferral of removal based on 
the regulations implementing CAT to the current regulation at 8 CFR 
274a.12(a)(10) as aliens who are employment authorized based solely on 
the grant of withholding or deferral and are not required to apply for 
employment authorization. This section also revises 8 CFR 
274a.12(c)(18) to reflect that eligibility for employment authorization 
based on a final order of removal and temporary release from custody on 
an order of supervision is limited to aliens whose removal is 
impracticable because all countries from whom DHS has requested travel 
documents have affirmatively declined to issue such documents and who 
establish economic necessity.
     8 CFR 274a.13, Applications for employment authorization. 
This section adds a new paragraph specifically addressing the filing 
procedures and evidentiary requirements for aliens temporarily released 
from custody on an order of supervision who are seeking an initial EAD 
or renewing an EAD, including the new requirements to: (1) Submit the 
Form I-765WS, Employment Authorization Worksheet (or successor form), 
(2) establish the alien's economic necessity for employment, (3) 
provide the E-Verify Company Identification Number for the alien's U.S. 
employer that participates in E-Verify and the employer's name as 
listed in E-Verify on the application for employment authorization 
(renewal applicants only), and (4) submit a copy of their current U.S. 
Immigration and Customs Enforcement (ICE) Form I-220B, Order of 
Supervision (or successor form), with a copy of the complete Personal 
Report Record. The amendments also provide that the validity period for 
employment authorization under 8 CFR 274a.12(c)(18) will not exceed 
increments of one year.

B. Summary of Costs, Benefits, and Transfer Payments

    This proposed rule is estimated to result in a reduction in the 
number of aliens on orders of supervision who are eligible for 
employment authorization, which could result in lost earnings for those 
no longer eligible. This loss of earnings would result in a transfer of 
costs from the alien to their support network, including family 
members, community groups, non-profits or third-party organizations to 
provide for the alien and any dependents. In addition, DHS estimates 
increased filing burdens associated with the proposed rule for those 
who remain eligible for employment authorization. Employers

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that currently hire workers who would no longer be eligible to renew 
under this rule could experience new costs due to employee turnover and 
the need to comply with the proposed E-Verify requirement. Finally, the 
proposed rule may result in a loss of tax revenue.
    Under the proposed rule, DHS anticipates there would be six types 
of impacts that DHS can estimate and quantify: (1) Potential lost 
earnings for alien workers temporarily released on orders of 
supervision who may no longer be eligible for employment authorization; 
(2) increased time burden for applicants to submit forms; (3) added 
time and costs for applicants to submit biometrics; (4) labor turnover 
costs that employers of alien workers with orders of supervision could 
incur when their employees' EADs expire and are not renewed; (5) costs 
to employers to enroll in and maintain an E-Verify account as a 
participant in good standing to retain workers with orders of 
supervision who are applying for renewal EADs; and (6) potential 
employment tax losses to the Federal Government.
    DHS estimates that some aliens with final removal orders and 
temporarily released on orders of supervision would be ineligible for 
discretionary EADs due to this proposed rule. However, DHS cannot 
estimate with precision what the future eligible population would be 
because of data constraints and, therefore, relies on a range with an 
upper and lower bound. The estimated costs of this proposed rule would 
range from a minimum of about $94,868, (annualized 7%) associated with 
biometrics and added burdens for relevant filing forms to a maximum of 
$1,496,016,941 (annualized 7%) should no replacement labor be found for 
aliens on orders of supervision who would be ineligible for employment 
authorization under this rule.\8\ The ten-year undiscounted costs would 
range from $940,239 to $14,722,941,163. DHS estimates $228,789,887 
(annualized 7%) as the maximum decrease in employment tax transfers 
from companies and employees to the Federal Government.
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    \8\ DHS estimates some of the costs and benefits of this rule 
using the newly published U.S. Citizenship and Immigration Services 
Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, final rule (``Fee Schedule Final Rule''), and 
associated form changes, as the baseline. 85 FR 46788 (Aug. 3, 
2020). The Fee Schedule Final Rule was scheduled to go into effect 
on October 2, 2020. On September 29, 2020, the U.S. District Court 
for the Northern District of California issued a nationwide 
injunction, which prevents DHS from implementing the Fee Schedule 
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend 
this lawsuit and is not changing the baseline for this rule as a 
result of the litigation. Should DHS not prevail in the Fee Schedule 
Final Rule litigation, this rule may reflect understated costs 
associated with biometrics fees and overstated benefits associated 
with filing Form I-765.
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    Table 1 provides a summary of the proposed regulatory changes and 
the estimated impacts of the proposed rule.
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BILLING CODE 9111-97-C
    The impacts of reducing the number of aliens temporarily released 
on orders of supervision that are eligible for EADs include both 
potential distributional impacts (transfers) and costs. USCIS uses the 
lost compensation to aliens temporarily released on orders of 
supervision that are no longer eligible for EADs as a measure of the 
impact of this change--either as distributional impacts (transfers) 
from these aliens to others or as a proxy for businesses' cost for lost 
productivity. If all companies are able to easily find reasonable labor 
substitutes for the positions the aliens temporarily released on orders 
of supervision would otherwise have filled, DHS estimates a maximum of 
$1,495,358,741 (annualized at 7%) would be transferred from these 
workers to others in the labor force (or induced back into the labor 
force). Under this scenario, there would be no federal employment tax 
losses. Conversely, if companies are unable to find reasonable labor 
substitutes for the position the aliens temporarily released on orders 
of supervision would have filled then a maximum of $1,495,358,741 
(annualized 7%) is the estimated monetized cost of this provision, and 
$0 is the estimated monetized transfers from these aliens to other 
workers. In addition, under this scenario where jobs would go unfilled, 
there would be a loss of employment taxes to the Federal Government. 
USCIS estimates $228,789,887 (annualized 7%) as the maximum decrease in 
employment tax transfers from companies and employees to the Federal 
Government.
    The two scenarios described above represent the estimated endpoints 
for the range of monetized impacts resulting from the provisions that 
affect employment eligibility for aliens temporarily released on orders 
of supervision. There are other costs of the rule, including E-Verify, 
biometrics, labor turnover, and additional form burdens. These costs 
exist under both scenarios described above, and thus $94,868 is the 
minimum cost of the rule (annualized 7%).
    DHS is aware that the outbreak of COVID-19 will likely impact these 
estimates in the short run.\9\ As discussed above, the analysis 
presents a range of impacts, depending on if companies are able to find 
replacement labor for the jobs alien workers temporarily released on 
orders of supervision would have filled. In September 2020, the 
unemployment rate

[[Page 74203]]

was 7.9 percent.\10\ This is an improvement on April's 14.7 percent 
which marked the highest unemployment rate and the largest over-the-
month increase in the history of the series (seasonally adjusted data 
are available back to January 1948).\11\ By comparison, the 
unemployment rate for September 2019 was 3.5%.\12\ DHS assumes that 
during the COVID-19 pandemic, with additional available labor 
nationally, companies are more likely to find replacement labor for the 
job the alien on an order of supervision would have filled.\13\ Thus, 
in the short-run during the pandemic and the ensuing economic recovery, 
the lost compensation to EAD applicants as a result of this rule is 
likely to mean that the costs of the rule will be lower than they would 
otherwise have been. DHS notes that although the pandemic is 
widespread, the severity of its impacts varies by locality. 
Consequently, it is not clear to what extent the distribution of alien 
workers temporarily released on orders of supervision overlaps with 
areas of the country that will be more or less impacted by the COVID-19 
pandemic. Accordingly, DHS cannot estimate with confidence to what 
extent the impacts will be transfers instead of costs.
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    \9\ On March 13, 2020, the President declared that the COVID-19 
outbreak in the United States constitutes a national emergency. See 
`Proclamation on Declaring a National Emergency Concerning the Novel 
Coronavirus Disease (COVID-19) Outbreak,' available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
    \10\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/archives/empsit_10022020.pdf.
    \11\ In April 2020, the unemployment rate increased by 10.3 
percentage points to 14.7 percent. Department of Labor, Bureau of 
Labor Statistics, The Employment Situation--April 2020. Available 
at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \12\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2019, Employment Situation Summary 
Table A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
    \13\ The Congressional Budget Office estimates the unemployment 
rate is expected to average close to 14 percent during the second 
quarter, See: CBO's Current Projections of Output, Employment, and 
Interest Rates and a Preliminary Look at Federal Deficits for 2020 
and 2021 https://www.cbo.gov/publication/56335 April 24, 2020.
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    DHS's assumption that all applicants with an EAD are able to obtain 
employment (discussed in further detail later in the analysis), also 
does not reflect impacts from the COVID-19 pandemic. It is not clear 
what level of reductions the pandemic will have on the ability of EAD 
holders to find jobs (as jobs are less available), or how DHS would 
estimate such an impact with any precision given available data. 
Consequently, the ranges projected in this analysis regarding lost 
compensation are expected to be an overestimate, especially in the 
short-run. The range of impacts described by the scenarios above, plus 
the consideration of the other costs, are summarized in Table 2 below.

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BILLING CODE 9111-97-P
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    In addition, Table 3 presents the prepared accounting statement, as 
required by the Office of Management and Budget (OMB) Circular A-4, 
showing the costs associated with this proposed regulation. Note that 
under costs, the primary estimates provided in the accounting statement 
are calculated based on the minimum cost from the scenario that all 
aliens temporarily released on orders of supervision are replaced with 
other workers and the maximum cost from the scenario that no aliens 
temporarily released on orders of supervision are replaced with other

[[Page 74206]]

workers (scenario presented in Tables 2(A) and (B)).
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BILLING CODE 9111-97-C
    The benefits potentially realized by the proposed rule are both 
qualitative and quantitative. Under this proposed rule, a U.S. worker 
may have a better chance of obtaining jobs that some (c)(18) alien 
workers currently hold, as the proposal would reduce employment 
authorization eligibility for this population of aliens who have been 
ordered removed from the country. Second, the proposed rule may reduce 
the incentive for aliens to remain in the United States after receiving 
a final order of removal, which could reduce the amount of government 
resources expended on enforcing removal orders for such aliens as well 
as monitoring and tracking aliens temporarily released on orders of 
supervision. Third, DHS clarifies that aliens granted CAT deferral of 
removal would no longer need to submit Form I-765 in order to become 
employment authorized after the effective date of the final rule. DHS 
estimates the total benefits for this population would range from $0 to 
$105,690 annually. Additional savings could also be accrued in the form 
of opportunity costs of time if applicants would have spent time 
submitting evidence under any of the (c)(18) considerations.

III. Purpose of the Proposed Rule

    It is the Administration's policy to ensure the prompt removal of 
aliens who have been issued a final order of removal. In 2017, 
President Trump issued Executive Order (E.O.) 13768, ``Enhancing Public 
Safety in the Interior of the United States,'' 82 FR 8799 (Jan. 25, 
2017). This E.O. noted that the enforcement of our immigration laws is 
critically important to the national security and public safety of the 
United States. The continued presence in the United States of aliens 
with final orders of removal, many of whom are criminals who have 
served time in our Federal, State, and local jails and who have been 
determined in immigration proceedings to be ineligible to remain in the 
country, is contrary to the national interest. For this reason, the 
E.O. directed the Secretary of Homeland Security (the Secretary) to 
prioritize the removal of aliens from the United States who have final 
orders of removal and to publish new regulations revising or rescinding 
any regulations inconsistent with this E.O.
    It is also the policy of the Administration to administer our 
immigration laws to create higher wages and employment rates for 
workers in the United States. See Exec. Order No. 13788, ``Buy American 
and Hire American'' (BAHA), 82 FR 18837 (Apr. 18, 2017). E.O. 13788 
directed the Secretary to propose new rules to supersede or revise 
current rules to protect the interests of U.S. workers in the 
administration of the immigration system. Given the significant 
disruptions COVID-19 has caused to the U.S. economy and labor market, 
the President also issued Proclamation 10052, ``Suspending Entry of 
Immigrants and Nonimmigrants Who Present a Risk to the U.S. Labor 
Market During the Economic Recovery following the 2019 Novel 
Coronavirus Outbreak'' 85 FR 38263 (June 22, 2020). Proclamation 10052, 
among other things, requires the Secretary to take appropriate steps 
``to prevent certain aliens who have final orders of removal; . . . 
from obtaining eligibility to work in the United States.'' 85 FR at 
38266.

[[Page 74208]]

    Obtaining employment authorization in the United States has long 
been, and continues to be, a significant incentive for aliens to 
migrate to (legally and illegally) and remain in the United States. As 
such, employment authorization must be carefully regulated to maintain 
the integrity of the U.S. immigration system. Many aliens ordered 
removed have been released from DHS custody on OSUP because some 
countries unreasonably delay issuance of travel documents or due to 
lack of good faith efforts by the alien. In addition, because of the 
Supreme Court's decision in Zadvydas, DHS must release aliens within a 
presumptively reasonable 6-month period, which in many instances is not 
sufficient time for DHS to obtain the travel documents needed to remove 
the alien from the United States. Further, many of these aliens are 
criminals whose continued presence in the United States is not in the 
national interest. DHS has identified that providing an ``open market'' 
employment authorization to aliens with final removal orders 
exacerbates the challenges in effectuating removal by incentivizing 
such aliens to remain in the United States and possibly compete for 
jobs against U.S. workers instead of complying with their removal 
orders, working with the country of removal to obtain travel documents 
in a timely manner, and departing the United States.
    Through this proposed rule, DHS seeks to promote the integrity of 
the immigration system by eliminating discretionary employment 
authorization for those who have a final order of removal and 
encouraging their efforts to obtain travel documents in timely manner 
and depart the United States. The proposed rule would also help 
strengthen protections for U.S. workers and minimize the risk of 
disadvantaging U.S. workers, especially as the U.S. economy and the 
labor market recover from the significant disruptions caused by the 
COVID-19 pandemic.

A. Enforcement Priorities

    Enforcement of the nation's immigration laws is essential to the 
integrity of the immigration system. It ensures that only those who are 
legally qualified and lawfully in the United States are allowed to 
avail themselves of any benefits under the INA. In 1996, Congress 
passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 
Public Law 104-132, title IV; 110 Stat. 1214 (Apr. 24, 1996) and the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Public Law 104-208, div. C; 110 Stat. 3009 (Sept. 28, 1996). 
AEDPA and IIRIRA made sweeping changes to U.S. immigration laws 
focusing on immigration enforcement, detention of aliens, and bars to 
certain types of relief or protection from removal and grants of legal 
status. IIRIRA expanded the Attorney General's (now Secretary's) 
authority \14\ to detain aliens, including requiring mandatory 
detention of aliens convicted of aggravated felony offenses and the 
detention of aliens pending removal from the United States. It also 
created an expedited removal process for aliens seeking admission into 
the United States who do not have proper documents or who make material 
misrepresentations, and, as designated by the Secretary, aliens who 
have not been inspected and admitted or paroled into the United States 
and cannot prove they have been in the United States for at least two 
years.\15\ By passing AEDPA and IIRIRA, Congress made clear that 
enforcement of the immigration laws is a priority and is critical for 
purposes of national security, public safety, and the integrity of the 
U.S. immigration system.
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    \14\ On March 1, 2003, the functions of the former Immigration 
and Naturalization Service related to border security were 
transferred to the Secretary. The Homeland Security Act, Public Law 
107-296, 441(c) (6 U.S.C. 251(2)).
    \15\ See, e.g., H.R. Conf. Rep. 104-828, title III, subtitle A 
(1996).
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    Unfortunately, DHS is not always able to promptly remove aliens 
with final orders of removal. Sections 241(a)(1) and (2) of the INA, 8 
U.S.C. 1231(a)(1), (2), provide for a 90-day removal period in which 
the Secretary is authorized to detain the alien and within which the 
Secretary shall remove the alien. However, the removal of aliens from 
the United States and repatriation \16\ to their home countries can be 
a difficult and time-consuming process that can be further complicated 
and impeded by a lack of sufficient agency resources or legal 
constraints. Delays in removal also can occur because some countries 
unreasonably delay the issuance of travel documents, or unreasonably 
delay accepting the repatriation of their nationals.\17\ Based on data 
on removals executed by DHS, it may take DHS 6 months or longer to 
obtain travel documents and remove an alien from the United States. For 
example, in Fiscal Year (FY) 2017, the average time for DHS to remove 
an alien who had a final order and was temporarily released on an order 
of supervision was 321.39 days.\18\ However, in FY 2018, the number of 
days it took DHS to remove an alien who had a final order and was 
temporarily released on an order of supervision decreased to just over 
6 months (average time to remove was 187.19 days).\19\
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    \16\ Repatriation includes repatriation of aliens to the country 
of nationality or citizenship as well as to the country of last 
habitual residence.
    \17\ See DHS Office of Inspector General Report, ``ICE Faces 
Barriers in Timely Repatriation of Detained Aliens,'' OIG-19-28 
(Mar. 11, 2019).
    \18\ Id.
    \19\ Id.
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    While DHS has authority to detain aliens with final orders of 
removal during the removal period, if DHS cannot effectuate an alien's 
removal in a presumptively reasonable 6-month removal period, DHS must 
generally release such aliens from detention. See generally Zadvydas v. 
Davis, 533 U.S. 678 (2001).\20\ Due to the U.S. Supreme Court's 
decision in Zadvydas, DHS has had to release thousands of aliens from 
detention as illustrated in Table 4, including aliens convicted of 
aggravated felonies and other serious crimes.
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    \20\ See infra Section IV, paragraph B for additional discussion 
of the Zadvydas decision.

                       Table 4--Aliens Released From ICE Custody on Order of Supervision *
----------------------------------------------------------------------------------------------------------------
            Category                  FY 2015         FY 2016         FY 2017         FY 2018         FY 2019
----------------------------------------------------------------------------------------------------------------
Convicted Criminals \21\........           3,692           3,179           2,815           4,233           5,269
Pending Criminal Charges........             N/A             N/A             N/A             431             993
Other Immigration Violator......           3,080           4,381           3,502           7,748           7,504
                                 -------------------------------------------------------------------------------
    Total.......................           6,772           7,560           6,317          12,412          13,766
----------------------------------------------------------------------------------------------------------------
Note: In FY 2018, ICE redefined categorization of immigration violator's criminality. Therefore, the categories
  changed from ``criminal'' and ``noncriminal'' to ``convicted criminal alien,'' ``pending criminal charges,''
  and ``other immigration violators.''
* Data from ICE Enforcement and Removal Operations, Law Enforcement Systems and Analysis (ERO, LESA) (FY 2015 to
  FY 2019).


[[Page 74209]]

    When aliens with final removal orders are released from DHS 
custody, they are released on orders of supervision. These orders of 
supervision contain conditions for release, such as requiring aliens to 
assist with efforts to procure travel documents and present themselves 
for removal in the event removal can be arranged. Once temporarily 
released on an order of supervision, an alien may apply for employment 
authorization under 8 CFR 274a.12(c)(18). Each year, USCIS approves 
thousands of initial requests for employment authorization and renewals 
of such authorization for aliens released from DHS custody on orders of 
supervision as shown in Table 5.
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    \21\ ``Convicted criminal'' means an immigration violator with a 
criminal conviction entered into ICE's systems of record at the time 
of the enforcement action.

        Table 5--Aliens Temporarily Released on Orders of Supervision Granted Employment Authorization *
----------------------------------------------------------------------------------------------------------------
            Category                  FY 2015         FY 2016         FY 2017         FY 2018         FY 2019
----------------------------------------------------------------------------------------------------------------
Initials........................           8,748           7,499           5,273           3,433           4,071
Renewals........................          21,236          24,464          21,274          20,151          21,350
----------------------------------------------------------------------------------------------------------------
* Data obtained from the USCIS Office of Performance and Quality (OPQ).

    As noted above, E.O. 13768 made the prompt removal of aliens 
ordered removed a priority for the Administration and directed the 
Secretary to publish new regulations revising or rescinding any 
regulations that are inconsistent with the E.O. As a result of its 
regulatory review, DHS examined the current regulation at 8 CFR 
274a.12(c)(18) governing employment eligibility for aliens with a final 
removal order and temporarily released on orders of supervision. DHS 
determined that this regulation is inconsistent with the 
Administration's enforcement priorities because it allows virtually any 
alien temporarily released on an order of supervision to qualify for 
employment authorization and, as such, incentivizes such aliens to 
remain in the United States instead of complying with their removal 
order and departing the United States.
    The current regulation simply restates the language of INA section 
241(a)(7), 8 U.S.C. 1231(a)(7) and does not clearly place the burden on 
the alien to establish that he or she warrants a favorable exercise of 
discretion to obtain employment authorization. It also does not require 
an alien who has a final order of removal and has been temporarily 
released on an order of supervision to clearly establish on what basis 
he or she is seeking employment authorization, either under INA section 
241(a)(7)(A), because every country designated by the alien or under 
that section has refused to receive the alien, or under INA section 
241(a)(7)(B), because removal is impracticable or against the public 
interest. The burden is on the alien, not the U.S. Government, to 
establish that he or she is eligible for a discretionary benefit. 
Further, the current regulation does not put the public on notice of 
when DHS will deem the removal of an alien to be impracticable or what 
DHS has determined to be in the public interest for the purpose of 
granting employment authorization to aliens with final orders of 
removal.
    As previously stated, the ability to obtain employment 
authorization provides aliens a significant motivation to remain in the 
United States. DHS has determined that providing employment 
authorization to aliens who have final orders of removal, except in 
very limited circumstances, undermines the removal scheme created by 
Congress and incentivizes such aliens to remain in the United States 
instead of complying with their removal orders, working with the 
country of removal to obtain travel documents in a timely manner, and 
departing the United States. The revisions under this proposed rule 
will address these concerns and align the issuance of employment 
authorization with the Administration's enforcement priorities.

B. Strengthening Protections for U.S. Workers

    DHS also wants to ensure that any discretionary grant of employment 
authorization to aliens is consistent with the Administration's efforts 
to strengthen protections for U.S. workers and minimize the risk of 
disadvantaging U.S. workers.
    As noted above, E.O. 13788 directed DHS to propose new rules to 
supersede or revise current rules to protect the interests of U.S. 
workers \22\ in the administration of the immigration system. More 
recently, the President issued Proclamation 10052, which describes that 
significant disruptions COVID-19 has caused to the U.S. economy and the 
detrimental impact of foreign workers on the U.S. labor market during 
the high domestic unemployment. To address this concern, Proclamation 
10052, in addition to suspending the entry of certain immigrants and 
nonimmigrants into the United States, requires the Secretary to take 
appropriate steps to prevent certain aliens who have final orders of 
removal from obtaining eligibility to work in the United States.
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    \22\ Section 1(e) of E.O. 13788 refers to the definition for 
U.S. worker as either an employee who is a citizen or national of 
the United States; or is an alien who is lawfully admitted for 
permanent residence, is admitted as a refugee under section 207 of 
the INA, is granted asylum under section 208 of the INA, or is an 
immigrant otherwise authorized to be employed by the INA or the 
Attorney General. INA 212(n)(4)(E), 8 U.S.C. 1182(n)(4)(E).
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    This proposed rule aligns with the Administration's goals of 
protecting U.S. workers in the labor market, particularly as the 
economy recovers from the extraordinary disruptions resulting from the 
COVID-19 outbreak. The U.S. unemployment rose to a record high of 14.7 
percent in April 2020 \23\ but declined to 7.9 percent in 
September.\24\ However, it remains above 3.5%, which was unemployment 
rate for the same month last year (i.e., September 2019).\25\ DHS 
asserts it is likely that some aliens with final orders of removal and 
temporarily released on an order of supervision may compete for, and 
potentially occupy, jobs that U.S. workers might have applied for and 
been offered, particularly during this period of high unemployment. 
Aliens temporarily released on an order of supervision who apply for 
employment authorization under the current regulatory scheme receive an 
``open market'' EAD, meaning they may accept employment in any field 
and may be hired by any U.S. employer without the U.S. employer having 
to demonstrate that there were no available U.S.

[[Page 74210]]

workers or to guarantee that it will pay the prevailing wage or 
maintain certain work conditions.
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    \23\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--April 2020. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \24\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/pdf/empsit.pdf.
    \25\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2019, Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
---------------------------------------------------------------------------

C. Exception to Employment Authorization Bars

    DHS recognizes that there are certain times an alien cannot be 
removed from the United States because DHS is unable to obtain travel 
documents from a country of removal. Therefore, DHS is proposing to 
create a narrow exception to the bar to employment authorization. DHS 
will continue to allow aliens who are subject to a final order of 
removal to apply for discretionary employment authorization if (1) DHS 
has determined that their removal is impracticable because all 
countries from whom DHS has requested travel documents have 
affirmatively declined to issue such documents and (2) the aliens 
establish economic necessity.
    DHS anticipates that the number of aliens who are subject to a 
final order of removal for whom DHS has determined that their removal 
is impracticable will be relatively small. For example, in FY 2019, 
only about 4.8 percent (659) of aliens who were temporarily released on 
an order of supervision (13,766) could not be removed in that fiscal 
year due to DHS's inability to obtain travel documents during the 
fiscal year in which the aliens were counted (Table 6).\26\ 
Additionally, the percentage of aliens for whom DHS cannot obtain 
travel documents has averaged about 5 percent of aliens temporarily 
released on an order of supervision since FY 2015. DHS believes that 
the number of aliens who would qualify for this exception will remain 
small because even after an alien is temporarily released on an order 
of supervision, DHS continues to work with the foreign governments to 
obtain travel documents and DHS sometimes receives travel documents for 
such aliens shortly after their release or within the following fiscal 
year.
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    \26\ In certain instances, DHS was able to obtain travel 
documents for aliens in the next fiscal year.

         Table 6--Aliens Temporarily Released on Order of Supervision--Unable To Obtain Travel Documents
----------------------------------------------------------------------------------------------------------------
                                                                 Number of aliens on an
                                        Total number of aliens    order of supervision    Approximate percentage
             Fiscal year               temporarily released on   for whom DHS could not        of total (%)
                                       an order of supervision     obtain travel docs
----------------------------------------------------------------------------------------------------------------
2015.................................                    6,772                      369                      5.4
2016.................................                    7,560                      411                      5.4
2017.................................                    6,317                      324                      5.1
2018.................................                   12,412                      530                      4.3
2019.................................                   13,766                      659                      4.8
                                      --------------------------------------------------------------------------
    Average of During 5-Fiscal Year                      9,365                      459                      4.9
     Period..........................
----------------------------------------------------------------------------------------------------------------
* Data from ICE ERO, LESA Statistical Tracking Unit (FY 2015 to FY 2019).

    Finally, DHS believes that allowing aliens who fall within the 
exception to be eligible for employment authorization is consistent 
with section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Section 
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), bars employment 
authorization for aliens who have been ordered removed. No alien 
subject to a final order of removal has a right to apply for or obtain 
employment authorization from USCIS under U.S. law. Section 241(a)(7) 
of the INA, however, gives the Secretary the authority to grant 
employment authorization if the Secretary determines that: (1) An alien 
cannot be removed from the United States because all countries of 
removal as designated by the alien or delineated under section 241 of 
the INA, 8 U.S.C. 1231, have refused to receive the alien, or (2) the 
alien's removal is impracticable or contrary to the public interest. 
INA section 241(a)(7)(A) and (B), 8 U.S.C. 1231(a)(7)(A) and (B). The 
Secretary is not required to make a finding under either subparagraph 
(A) or (B) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7)(A), 
(B), nor is the Secretary required to make a specific finding under 
either clauses of subparagraph (B) (i.e. ``otherwise impracticable'' or 
``contrary to the public interest''). The Secretary can choose to 
maintain the permanent bar on employment authorization for all aliens 
subject to a final order of removal without further action.
    In this rulemaking, DHS is not making any findings under 
subparagraph (A). DHS does not believe any findings under subparagraph 
(A) are necessary or required because, consistent with the 
Administration's enforcement priorities, all aliens who have a final 
order of removal will be subject to removal from the United States, 
either to a country where the alien is a citizen, subject, or national, 
the alien was born, or the alien has a residence, or to any country 
that is willing to accept the alien.
    DHS also is not making any findings or creating an exception based 
on the ``public interest'' clause of subparagraph (B) because other 
avenues for employment eligibility already exist for aliens whom DHS 
determines that their removal is contrary to the public interest. For 
example, when an alien with a final order of removal is actively 
assisting law enforcement entities, and the alien's removal is contrary 
to the public interest because of such assistance, there are avenues 
for such aliens to qualify for employment authorization, in part, based 
on their assistance to law enforcement. Such aliens assisting law 
enforcement may qualify for employment authorization if they are 
eligible for T non-immigrant status (trafficking victims),\27\ U non-
immigrant status (victims of criminal activity),\28\ and S non-
immigrant status (witnesses in criminal investigations or 
prosecutions).\29\ These existing avenues reflect the public interest 
in strengthening cooperation with law enforcement and provide DHS with 
the appropriate framework to assess the nature of the alien's 
assistance to law enforcement.
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    \27\ See INA sec. 101(a)(15)(T) (Eligibility requirements 
include compliance with any reasonable request from a law 
enforcement agency for assistance in the investigation or 
prosecution of human trafficking).
    \28\ See INA sec. 101(a)(15)(U) (Eligibility requirements 
include helpfulness to law enforcement in the investigation or 
prosecution of a qualifying crime).
    \29\ See INA sec. 101(a)(15)(S) (Eligibility requirements 
include providing law enforcement critical, reliable information 
necessary to the successful investigation or prosecution of a 
criminal organization).
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    Therefore, except for aliens for whom the Secretary has made a 
finding under the impracticability clause of section 241(a)(7)(B) of 
the INA, 8 U.S.C. 1231(a)(7)(B), no other alien with a final

[[Page 74211]]

order of removal who has been temporarily released on an order of 
supervision will be eligible for employment authorization. This 
includes aliens who may have previously been eligible for employment 
authorization based on the public interest clause of section 
241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), or based section 
241(a)(7)(A) of the INA, 8 U.S.C. 1231(a)(7)(A). Furthermore, for 
purposes of determining employment eligibility only, DHS further 
clarifies that an alien's removal is ``otherwise impracticable'' under 
section 241(a)(7)(B) of the INA when DHS determines that all countries 
from whom DHS has requested travel documents have affirmatively 
declined to issue a travel document.
    DHS believes that exercising its discretionary authority as 
provided in this proposed rule promotes the protection of U.S. workers 
while ensuring the faithful execution and enforcement of the 
immigration laws.

IV. Background

A. Legal Authority

    DHS's authority to detain and release from custody aliens subject 
to final orders of removal on orders of supervision and to grant 
employment authorization is found in several statutory provisions. 
Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107-
296, 116 Stat. 2135), 6 U.S.C. 112 and section 103 of the INA, 8 U.S.C. 
1103, charge the Secretary with the administration and enforcement of 
the immigration and naturalization laws of the United States.\30\ In 
addition to establishing the Secretary's general authority to 
administer and enforce immigration laws, section 103 of the INA 
enumerates various related authorities including the Secretary's 
authority to establish regulations necessary for carrying out his 
authority. Section 241 of the INA, 8 U.S.C. 1231, governs the 
detention, release, and removal of aliens after they have received an 
administratively final order of removal. Section 274A of the INA, 8 
U.S.C. 1324a, governs employment of aliens who are authorized to be 
employed by statute or in the discretion of the Secretary and the 
requirements U.S. employers must follow to verify the identity and 
employment authorization of their employees. The authority to establish 
and operate E-Verify is found in sections 401-405 of IIRIRA, Public Law 
104-208, 110 Stat. 3009-546. The Secretary proposes the changes in this 
rule under these authorities.
---------------------------------------------------------------------------

    \30\ Public Law 104-208, div. C, at secs. 401-405.
---------------------------------------------------------------------------

B. Detention and Release of Aliens Ordered Removed

    Section 241 of the INA, 8 U.S.C. 1231, governs the detention, 
release, and removal of aliens who are subject to final orders of 
removal.\31\ When an alien is issued a final order of removal, DHS 
generally has 90 days after issuance of the final order of removal to 
remove the alien from the United States.\32\ This 90-day removal period 
can be extended if the alien fails or refuses to make timely 
application in good faith for travel or other documents necessary for 
the alien's departure or conspires or acts to prevent removal.\33\ 
Section 241(a)(2) of the INA, 8 U.S.C. 1231(a)(2), requires detention 
during the removal period and specifically prohibits DHS from releasing 
an alien who has been found inadmissible under sections 212(a)(2) or 
212(a)(3)(B), 8 U.S.C. 1182(a)(2), (a)(3)(B), or deportable under 
sections 237(a)(2) or 237(a)(4)(B) of the INA, 8 U.S.C. 1227(a)(2), 
(a)(4)(B).
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    \31\ Aliens subject to an expedited removal order, however, are 
not subject to release on an order of supervision. INA sec. 
235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (an alien 
subject to expedited removal under section 235 ``shall be detained 
pending a final determination of credible fear [ ] and, if found not 
to have such a fear, until removed).''
    \32\ INA sec. 241(a)(1)(A), (B)(i), 8 U.S.C. 1231(a)(1)(A), 
(B)(i).
    \33\ INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).
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    In certain instances, DHS is not able to remove aliens within the 
90-day period after issuance of the final order of removal. In such 
cases, DHS must comply with the U.S. Supreme Court's decision in 
Zadvydas.\34\ In Zadvydas, the U.S. Supreme Court held that an alien 
with a final order of removal cannot be kept in detention (unless 
special circumstances exist) \35\ once it has been determined that 
there is not a ``significant likelihood of removal in the reasonably 
foreseeable future.'' \36\ The Court established six months as the 
``presumptively reasonable period of detention.'' After the six-month 
period, once the alien provides good reason to believe there is no 
significant likelihood of removal in the reasonably foreseeable future, 
the Government must respond with sufficient evidence to rebut that 
showing.\37\ In the event DHS determines that removal is not likely to 
occur in the reasonably foreseeable future, the alien must generally be 
temporarily released on an order of supervision. During this period of 
release, the alien is required to continue to make efforts (or assist 
in efforts) towards his or her removal, and DHS will continue to pursue 
the alien's removal.\38\
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    \34\ 533 U.S. 678 (2001).
    \35\ Under 8 CFR 241.14, aliens with ``special circumstances'' 
are those: (1) That have a highly contagious disease that threatens 
public safety; (2) whose release would have serious adverse foreign 
policy implications; (3) who present a significant threat to 
national security or significant risk of terrorism; or (4) who are 
specially dangerous.
    \36\ Zadvydas, 533 U.S. at 701.
    \37\ Id.; see also 8 CFR 241.13(d).
    \38\ See 8 CFR 241.5(a).
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    If an alien is temporarily released on an order of supervision, the 
order of supervision will contain conditions for release including 
requiring the alien to appear periodically before an immigration 
officer and comply with the conditions prescribed in the order of 
supervision.\39\ INA section 241(a)(3), 8 U.S.C. 1231(a)(3); 8 CFR 
241.5(a). If an alien fails to comply with the conditions for release 
as specified in the order of supervision, DHS can take the alien back 
into custody and detain the alien until he or she is removed. Aliens 
who willfully fail to comply with an order of supervision can also be 
criminally prosecuted under section 243(b) of the INA, 8 U.S.C. 
1253(b).
---------------------------------------------------------------------------

    \39\ DHS may also require that an alien temporarily released on 
an order of supervision to post a bond of a sufficient amount to 
ensure that the alien complies with the terms for release, including 
surrendering him or herself to DHS custody for removal. 8 CFR 
241.5(b).
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C. Repatriation of Aliens Ordered Removed

    Once an alien has been issued a final order of removal, ICE is 
responsible for effectuating the alien's removal from the United States 
pursuant to section 241 of the INA, 8 U.S.C. 1231, and 8 CFR 241. 
Generally, a travel document must be obtained from a foreign government 
that will allow the alien to depart the United States and be 
repatriated either to the alien's country of birth, citizenship, 
nationality, or last habitual residence or to an alternate country that 
has agreed to accept the alien. As indicated earlier, based on data on 
removals for FY 2018, it takes DHS an average of a little over 6 months 
to obtain travel documents and remove an alien from the United 
States.\40\
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    \40\ Furthermore, it should also be noted that even though the 
average time to obtain travel documents across all countries was a 
little over six months, the process for negotiating with foreign 
governments to obtain travel documents is dynamic. While there may 
be a period of inactivity by a particular foreign government to 
cooperate with issuing travel documents, a policy shift can also 
occur quickly and result in prompt repatriation.
---------------------------------------------------------------------------

    However, obtaining travel documents is not always easy. Some 
countries refuse or unreasonably delay the issuance of the necessary 
travel documents to aliens who have been issued a final order of 
removal. Countries that unreasonably delay

[[Page 74212]]

accepting the repatriation of their citizens or nationals impede DHS's 
ability to remove the alien in a timely manner and interfere with the 
United States' sovereign interest in enforcing its immigration laws. 
Under section 243(d) of the INA, 8 U.S.C. 1253(d), the Secretary has 
the authority to notify the Secretary of State that a specific country 
is refusing or unreasonably delaying acceptance of its nationals. Upon 
such notification from the Secretary, the Secretary of State shall 
order consular officers in that country to discontinue issuing 
immigrant visas, nonimmigrant visas, or both to citizens and nationals 
of that country.\41\ While DHS and DOS work through various diplomatic 
channels and avenues to get such countries to comply, and most 
countries do comply, there are countries that refuse to assist in the 
repatriation of their citizens and nationals, and as a result, the 
United States has imposed visa sanctions under section 243(d) of the 
INA, 8 U.S.C. 1253(d), to get such countries to cooperate.\42\
---------------------------------------------------------------------------

    \41\ In 2017, DHS and DOS entered into a Memorandum of 
Understanding (MOU) Concerning the Removal of Aliens, which 
superseded the 2011 ICE and DOS Bureau of Consular Affairs MOU 
Concerning Repatriation. The new MOU creates a framework for 
effectuating repatriations, sets forth tools the agencies will use 
to encourage countries to accept the return of their nationals, and 
establishes a target travel document issuance time of 30 days.
    \42\ Visa sanctions have been previously invoked under INA 
Section 243(d) against the following countries: Guyana in 2001; The 
Gambia in 2016; Cambodia, Eritrea, Guinea, and Sierra Leone in 2017; 
Burma and Laos in 2018; Cuba, Ghana, and Pakistan in 2019; and 
Burundi and Ethiopia in 2020. Visa sanctions have since been lifted 
against Guyana, Guinea, and The Gambia. See ``Visa Sanctions Against 
Two Countries Pursuant to Section 243(d) of the Immigration and 
Nationality Act,'' at https://www.ice.gov/visasanctions (Last 
updated Aug. 13, 2020).
---------------------------------------------------------------------------

D. Withholding of Removal Under the INA and Regulations Implementing 
CAT and Deferral of Removal Under Regulations Implementing CAT

    Even if the alien is inadmissible or deportable and has a final 
order of removal, DHS's ability to remove an alien in certain cases is 
further restricted by U.S. treaty obligations. The United States is a 
party to the 1967 Protocol relating to the Status of Refugees 
(Protocol), which incorporates, inter alia, Article 33 of the 1951 
Convention relating to the Status of Refugees. 198 U.N.T.S. 137. 
Article 33 specifically provides that ``[n]o contracting state shall 
expel or return (refouler) a refugee in any manner whatsoever to the 
frontier of territories where his life or freedom would be threatened 
on account of his race, religion, nationality, membership of a 
particular social group, or political opinion.'' \43\ The United States 
is also a party to the CAT. Article 3 of the CAT requires that ``[n]o 
State Party shall expel, return (`refouler') or extradite a person to 
another state where there are substantial grounds for believing that he 
would be in danger of being subjected to torture.'' \44\
---------------------------------------------------------------------------

    \43\ Convention relating to the Status of Refugees art. 33, 
opened for signature July 28, 1951, 198 U.N.T.S. 137.
    \44\ Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment art 3, ratified Oct. 21, 1994, 
1465 U.N.T.S. 85.
---------------------------------------------------------------------------

    Though neither of these treaties is self-executing, the United 
States has implemented its non-refoulement obligations under them in 
statute and regulations. With respect to the Protocol, Congress 
implemented the United States' non-refoulement obligations as part the 
Refugee Act of 1980, section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). 
With respect to the CAT, Congress directed the appropriate agencies to 
publish regulations to implement the United States' obligations under 
Article 3 of the CAT in the Foreign Affairs Reform and Restructuring 
Act of 1988 (FARRA), Public Law 105-277, Div. G., Sec.  2442(b) (Oct. 
21, 1998). DOJ published regulations in 1999 implementing FARRA Sec.  
2442. See 64 FR 8478-01 (1999). The regulations governing withholding 
of removal based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), 
and CAT are now codified at 8 CFR 208.16 through 208.18 and 8 CFR 
1208.16 through 1208.18.
    Aliens granted withholding of removal based on section 241(b)(3) of 
the INA, 8 U.S.C. 1231(b)(3), as well as aliens granted withholding of 
removal based on the regulations implementing CAT, 8 CFR 208.16(c), are 
both subject to mandatory bars to withholding if the alien participated 
in the persecution of others, is a human rights violator, or has been 
convicted of a particularly serious crime.\45\ However, even if an 
alien is not eligible for withholding under the provisions noted above 
because he or she is subject to one of the mandatory bars to 
withholding, DHS still is not permitted to remove an alien from the 
United States if an IJ or the Board of Immigration Appeals (BIA) has 
determined that removal would result in the alien being removed to a 
country where he or she would more likely than not be tortured. 8 CFR 
208.17 and 1208.17. In such instances, the IJ or BIA defers removal to 
that country.
---------------------------------------------------------------------------

    \45\ 8 CFR 208.16(d)(2) specifically notes that an application 
for withholding of removal under CAT shall be denied if the 
applicant falls within INA section 241(b)(3)(B).
---------------------------------------------------------------------------

    Withholding of deportation or removal based on section 241(b)(3) of 
the INA, 8 U.S.C. 1231(b)(3), or the regulations implementing CAT (if 
the alien is not subject to a mandatory bar) and CAT deferral of 
removal are mandatory and must be granted if the alien meets the burden 
of proof. See 8 CFR 208.16(c)(4) and 208.17(a). Once an alien has been 
granted withholding of removal or deferral of removal, DHS cannot 
remove the alien to the country from which removal has been withheld or 
deferred unless the alien's case is reopened and withholding is 
terminated under 8 CFR 208.24 or 1208.24, or deferral is terminated 
under 8 CFR 208.17 or 1208.17. In most instances an alien granted 
withholding of removal or deferral of removal under the regulations 
implementing CAT will be released pursuant to an order of supervision, 
but such an order does not alter or affect the nondiscretionary nature 
of the withholding or deferral of removal grant, even if the alien 
subsequently violates the conditions for release as specified in the 
order of supervision. Such violations could result in a return of the 
alien to ICE custody but will not result in the alien's actual removal 
from the United States unless the alien's case is reopened and 
withholding is terminated under 8 CFR 208.24 or 1208.24, or deferral is 
terminated under 8 CFR 208.17 or 1208.17.

E. Employment Authorization

    Whether an alien is authorized to work in the United States depends 
on the alien's status in the United States and whether employment is 
specifically authorized by statute or only authorized pursuant to the 
Secretary's discretion. There are very few statutory provisions that 
require the Secretary to grant employment authorization.\46\ While some 
statutory provisions specifically allow the Secretary to grant 
employment authorization as a matter of discretion,\47\ the Secretary's 
general authority under section 274A(h)(3) of the INA, 8 U.S.C.

[[Page 74213]]

1324a(h)(3), is used to establish most discretionary employment 
authorization categories. However, in the context of aliens ordered 
removed, section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), 
specifically prohibits an alien who has been ordered removed from the 
United States from being eligible to receive employment authorization 
unless the Secretary determines that the alien cannot be removed 
because no country, as designated by the alien or delineated under 
section 241(b) of the INA, 8 U.S.C. 1231(b), will accept the alien or 
the alien's removal is impracticable or contrary to the public 
interest.
---------------------------------------------------------------------------

    \46\ See, e.g., INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E) 
(requiring spouses of L nonimmigrants to be employment authorized); 
INA sec. 214(e)(6), 8 U.S.C. 1184(e)(6) (requiring spouses of E 
treaty traders/investors to be employment authorized; INA sec. 
214(p), 8 U.S.C. 1184(p) (requiring U nonimmigrants to be employment 
authorized).
    \47\ See, e.g., INA sec. 106(a), 8 U.S.C. 1105a (providing that 
the Secretary may grant employment authorization to spouses and 
children of certain nonimmigrants who were battered or subjected to 
extreme cruelty); INA sec. 214(p)(6), 8 U.S.C. 1182(p)(6) (providing 
that the Secretary may grant employment authorization to aliens who 
have filed a bona fide application for U nonimmigrant status).
---------------------------------------------------------------------------

    DHS regulations at 8 CFR 274a.12 set forth the categories of aliens 
who are authorized to work in the United States, including; those 
aliens who are authorized to work incident to their status (8 CFR 
274a.12(a)); aliens who are authorized to work in the United States but 
only for a specific employer (8 CFR 274a.12(b)); and aliens who fall 
within a category that the Secretary has determined may be employment 
authorized as a matter of discretion (8 CFR 274a.12(c)). Aliens seeking 
employment authorization generally must file an application with USCIS 
with the appropriate fee (unless waived) and in accordance with the 
form instructions. See 8 CFR 274a.13.

F. Biometric Submission

    Current DHS regulations provide general authorities for USCIS to 
require the submission of biometrics in connection with immigration 
benefits. See 8 CFR 103.2(b)(9). DHS has the authority to require the 
submission of biometrics from any applicant, petitioner, sponsor, 
beneficiary, or requestor, or individual filing a request, on a case-
by-case basis, through form instructions, or by a Federal Register 
notice. See 8 CFR 103.16. Current regulations allow DHS to use the 
biometric information to conduct background and security checks, 
adjudicate immigration benefits, and perform other functions related to 
the administration of the INA. See id. DHS is also authorized to charge 
a biometric services fee associated with the submission of biometric 
information. See 8 CFR 103.17.

V. Discussion of the Proposed Rule

A. Eligibility for Employment Authorization for Aliens on Orders of 
Supervision

    Section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically 
prohibits an alien who has been ordered removed from the United States 
from being eligible to receive employment authorization unless the 
Secretary, in the Secretary's discretion, determines, under 
subparagraph (a)(7)(A), that the alien cannot be removed because no 
country, as designated by the alien or delineated under section 241(b) 
of the INA, 8 U.S.C. 1231(b), will accept the alien or, under 
subparagraph (a)(7)(B), 8 U.S.C. 1231(a)(7)(B), the alien's removal is 
impracticable or contrary to the public interest. Neither the INA nor 
the regulations mandate issuance of employment authorization for any 
alien subject to a final order of removal or based on such alien's 
temporary release from custody on an order of supervision. The statute 
preserves the Secretary's discretion to decide if employment 
authorization should be granted and, if yes, to which classes of aliens 
based upon a finding under subparagraph (A) or (B) of section 241(a)(7) 
of the Act, 8 U.S.C. 1231(a)(7)(A), (B).
    DHS is proposing to amend 8 CFR 274a.12(c)(18) to eliminate 
eligibility for employment authorization for all aliens who have final 
orders of removal and are temporarily released from custody on an order 
of supervision except for aliens for whom DHS has determined that their 
removal from the United States is impracticable because all countries 
from whom DHS has requested travel documents have affirmatively 
declined to issue such documents. See proposed 8 CFR 274a.12(c)(18). 
Providing EADs to aliens who do not fall within this exception 
undermines the integrity of the immigration system by incentivizing 
aliens with a final removal order to remain in the United States 
instead of complying with their removal orders, obtaining travel 
documents in a timely manner, and departing the United States.
    Encouraging aliens who do not fall within the exception provided in 
this rule to timely depart the United States also promotes the 
efficient use of DHS's limited resources. Managing the vast number of 
aliens on OSUP consumes an inordinate amount of DHS resources. 
Management of aliens temporarily released on OSUP requires tracking and 
monitoring the status of such aliens, as well as conducting regular 
check-ins to ensure compliance with the conditions of release. This 
time intensive process takes away from other enforcement priorities 
such identifying, detaining, and removing criminal aliens. The proposed 
rule also aligns with the Administration's goals of strengthening 
protections for U.S. workers in the labor market. It helps strengthen 
protections for U.S. workers and minimize the risk of disadvantaging 
U.S. workers, especially as the economy and the labor market recovers 
from the significant disruptions caused by the COVID-19 pandemic.
    DHS has determined that continuing to provide employment 
authorization to those aliens who fall within the exception provided in 
this rule is consistent with the impracticability clause of INA section 
241(a)(7)(B), 8 U.S.C. 1231(a)(7)(B). Table 7 below shows the number of 
aliens for whom DHS cannot obtain travel documents annually out of the 
total number of aliens removed from the United States.

 Table 7--Aliens Removed From the United States and Aliens for Whom DHS Was Unable To Obtain Travel Documents in
                                           the Reported Fiscal Year *
----------------------------------------------------------------------------------------------------------------
                                                                                           Number of aliens on
                                                                                          orders of supervision
                                                                 Total number of aliens   for whom DHS could not
                          Fiscal year                           removed from the United   obtain travel docs to
                                                                         States            execute removal from
                                                                                            the United States
----------------------------------------------------------------------------------------------------------------
2015..........................................................                  235,413                      369
2016..........................................................                  240,255                      411
2017..........................................................                  226,119                      324
2018..........................................................                  256,085                      530
2019..........................................................                  267,258                      659
                                                               -------------------------------------------------
    Average over 5-Fiscal Year Period.........................                  245,026                      459
----------------------------------------------------------------------------------------------------------------
* Data from ICE ERO, LESA Statistical Tracking Unit (FY 2015 to FY 2019).


[[Page 74214]]

    In some instances, even if DHS is not able to obtain travel 
documents for an alien in one fiscal year, DHS is able to obtain such 
documents in a subsequent fiscal year. DHS expects the number of aliens 
whose removal from the United States is impracticable because all 
countries from whom DHS has requested travel documents have 
affirmatively declined to issue such documents will remain very low. As 
such, DHS has determined that it is not contrary to the INA or the 
Administration's enforcement priorities to allow such aliens to work 
while they remain in the United States and until they can be removed.
    For aliens whose removal from the United States is impracticable, 
DHS is proposing to make economic necessity, which is currently only a 
discretionary factor, a mandatory eligibility requirement, consistent 
with other discretionary employment authorization categories. See, 
e.g., 8 CFR 274a.12(c)(14). As such, aliens who are eligible to apply 
for employment authorization based on the exception created in this 
proposed rule will need to demonstrate economic necessity for 
employment during the period they are on an order of supervision. 
Aliens who are financially able to support themselves during the period 
prior to their removal from the United States will not be eligible for 
an EAD. Furthermore, to protect U.S. workers against potential 
displacement or any disadvantages in the labor market, including during 
the current economic recovery, DHS wants to ensure that U.S. employers 
who hire aliens who are temporarily released on an order of supervision 
are complying with our immigration laws and not employing unauthorized 
workers. For this reason, DHS is proposing to require aliens on an 
order of supervision who are seeking a renewal of their employment 
authorization be employed by a U.S. employer who is a participant in 
good standing in the E-Verify program.
    DHS proposes to limit the validity period for employment 
authorization under 8 CFR 274a.12(c)(18), whether the alien seeks an 
initial or renewal EAD, to a period not to exceed increments of one 
year.

B. USCIS Evidentiary Requirements

    DHS proposes to require aliens temporarily released on orders of 
supervision who are eligible to apply for employment authorization 
under the new criteria and who are seeking initial employment 
authorization or a renewal to submit an Application for Employment 
Authorization, (Form I-765) with the appropriate fee, including the 
biometric services fee, and in accordance with the form instructions. 
See proposed 8 CFR 274a.13(a)(3). DHS also proposes to require such 
aliens to submit the following additional documents: (1) A copy of a 
decision by an IJ or the BIA, or an administrative removal order issued 
by DHS demonstrating that the alien is subject to a final order of 
removal or deportation; (2) a completed Employment Authorization 
Worksheet (Form I-765WS) to show economic necessity; \48\ and (3) a 
copy of the current and complete Order of Supervision (Form I-220B), 
including a copy of the complete Personal Report Record which reflects 
compliance with the conditions for release.
---------------------------------------------------------------------------

    \48\ See also 8 CFR 274a.12(e) which provides that the Federal 
Poverty Guidelines under Title 45 of the U.S. Code should be used as 
the criteria to establish eligibility for employment authorization 
when economic necessity is a factor.
---------------------------------------------------------------------------

    Given that ICE is the primary DHS component with jurisdiction over 
the detention and removal of aliens with a final removal order, ICE 
will make the appropriate determination as to whether the alien's 
removal is impracticable at the time of the alien's initial temporary 
release on an order of supervision and thereafter when the alien is 
required to report to ICE consistent with the conditions of release. If 
ICE determines all countries from whom DHS has requested travel 
documents have affirmatively declined to issue such documents, ICE 
officers will annotate the Form I-220B to indicate that the alien's 
removal is currently impracticable because of the reasons stated above. 
Aliens with final removal orders who are temporarily released on an 
order of supervision and who are seeking employment authorization based 
on this exception would not be eligible to apply for employment unless 
ICE has made such a determination and annotated the Form I-220B to 
indicate the alien's removal is impracticable because of the reasons 
stated above.
    In addition to the above, DHS proposes to require aliens on orders 
of supervision who apply for initial employment authorization after the 
effective date of the final rule and who subsequently seek renewal of 
their employment authorization to: (1) Show that they meet the 
exception, (2) demonstrate economic necessity by submitting a completed 
Employment Authorization Worksheet (Form I-765WS), and (3) show that 
they are employed by a U.S. employer who is a participant in good 
standing in E-Verify (renewals only) by providing their U.S. employer's 
E-Verify Company Identification Number and the employer's name as 
listed in E-Verify on their application for employment authorization. 
Id. An alien who fails to establish that he or she is employed by an E-
Verify employer at the time of filing or adjudication of the 
application to renew his or her employment authorization is ineligible 
for an EAD. Furthermore, for both initial and renewal EAD applications, 
DHS will determine if the alien warrants a favorable exercise of 
discretion to grant employment authorization. To this end, aliens may 
include supporting documentation of favorable factors as part of the 
EAD application.

C. Biometric Submission and Criminal History

    Currently, all (c)(18) applicants receive an appointment notice 
from USCIS to submit their biometrics so USCIS can use them for 
identity verification and EAD production. DHS proposes to codify this 
biometric submission and associated biometric services fee for aliens 
seeking discretionary employment authorization under the (c)(18) 
category. See proposed 8 CFR 241.4(j)(3).
    In addition, DHS also proposes to use the (c)(18) applicant's 
biometrics to screen for criminal history. DHS has a strong interest in 
ensuring public safety and preventing aliens with significant criminal 
histories from obtaining a discretionary benefit. As such, for aliens 
who fall within the exception provided in this proposed rule and meet 
the economic necessity requirement, DHS is proposing to consider a 
(c)(18) applicant's criminal history in determining whether DHS will 
favorably exercise its discretion to grant an employment authorization. 
Where criminal history is a factor in the adjudication of an 
immigration benefit, DHS typically conducts biometric-based screening 
to independently identify and verify criminal history in addition to 
reviewing any evidence submitted by the applicant regarding his or her 
criminal history.\49\ As such, DHS would also use the (c)(18) 
applicant's biometrics to screen against government databases (for 
example, FBI databases) to determine if he or she matched any criminal 
activity on file. USCIS will continue to notify applicants of the 
proper date, time, and location to submit their biometrics after the 
application for employment authorization has been filed.
---------------------------------------------------------------------------

    \49\ See ``DHS/USCIS-018 Immigration Biometric and Background 
Check System of Records,'' 83 FR 36950 (July 31, 2018).
---------------------------------------------------------------------------

    Furthermore, DHS proposes to require a biometric services fee of 
$30 for (c)(18)

[[Page 74215]]

EAD applicants. See proposed 8 CFR 106.2(a)(32(i)(C). DHS requires a 
biometric services fee of $30 to be collected where the underlying 
immigration benefit fee does not capture or incorporate biometric 
service costs.\50\ See 8 CFR 103.17 & 106.2(a)(32)(i)(A), (B). DHS did 
not require a biometric services fee for (c)(18) EAD applicants in the 
2020 USCIS fee rule because this proposed rule and the USCIS fee rule 
were under development simultaneously, yet independently of one 
another. See 84 FR 62280-62371 (Nov. 14, 2019). Additionally, (c)(18) 
EAD applicants do not have an underlying immigration benefit 
application or petition that they must file into which associated 
biometric submission and processing costs can be incorporated. 
Therefore, to recover the cost of biometrics services for (c)(18) EAD 
applications, DHS must require a biometrics fee for a (c)(18) EAD 
applicant. Thus, DHS proposes to require a $30 biometric services fee 
with the Form I-765 for (c)(18) EAD applicants. See proposed 8 CFR 
106.2(a)(32)(i)(C).
---------------------------------------------------------------------------

    \50\ 84 FR 62280, 62302-62303 (Nov. 14, 2019). Explaining how 
USCIS calculated the biometric services fee of $30 that will be 
required for certain forms for which it performs biometrics 
services.
---------------------------------------------------------------------------

D. Aliens Granted Deferral of Removal Under the Regulations 
Implementing CAT

    Once an alien has been granted withholding or deferral of removal, 
DHS cannot remove the alien to the country from which removal has been 
withheld or deferred unless withholding or deferral are terminated 
under applicable regulatory procedures set out in 8 CFR 208.24, 
1208.24, 208.17, 1208.17, or 1208.18(c). The average number of aliens 
granted CAT deferral of removal over a 5-fiscal-year period was 147, 
and these numbers have not changed significantly over the last 
decade.\51\ As reflected in Table 8 below, the number of aliens granted 
CAT deferral from FY 2014 through FY 2018, remains low.
---------------------------------------------------------------------------

    \51\ U.S. Department of Justice, Executive Office for 
Immigration Review, Statistical Yearbooks, FY 2014 through FY 2018 
at https://www.justice.gov/eoir/statistical-year-book.

          Table 8--FY 2014 Through FY 2018 CAT Cases Granted *
------------------------------------------------------------------------
                                                           CAT deferral
                       Fiscal year                          of removal
------------------------------------------------------------------------
2014....................................................             121
2015....................................................             121
2016....................................................             140
2017....................................................             175
2018....................................................             177
                                                         ---------------
    5-Year Average......................................             147
------------------------------------------------------------------------
* U.S. Department of Justice, Executive Office for Immigration Review,
  Statistical Yearbooks for FY 2014-FY 2018.

    Currently, aliens who are not going to be removed because they are 
granted withholding of removal based on section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3), or the regulations implementing CAT are employment 
authorized based on the grant of withholding. See 8 CFR 274a.12(a)(10). 
However, DHS's regulations do not clearly indicate the basis for 
withholding of removal (INA section 241(b)(3) or CAT). DHS has 
determined that aliens who receive CAT deferral of removal should also 
be included in the regulatory category governing employment 
authorization for aliens granted withholding of removal. Aliens granted 
deferral of removal will be employment authorized based on the grant of 
deferral, until deferral is terminated under applicable regulations. 
DHS proposes to amend the regulations to make these clarifications.

E. Effective Date of the Final Rule

    With the exception of aliens whose removal DHS has determined is 
impracticable because all countries from whom DHS has requested travel 
documents have affirmatively declined to issue such documents, DHS 
proposes to apply changes made by this rule only to initial and renewal 
applications under 8 CFR 274a.12(c)(18) filed on or after the effective 
date of the final rule. DHS proposes to allow aliens temporarily 
released on orders of supervision who are already employment authorized 
prior to the final rule's effective date to remain employment 
authorized until the expiration date on their EAD, unless the card is 
revoked under 8 CFR 274a.14. USCIS would continue processing any 
pending application for a replacement EAD received before the effective 
date and receiving new applications for replacement EADs because those 
adjudications are not considered a new grant of employment 
authorization but a replacement of an EAD based on a previously 
authorized period.
    DHS further proposes to allow aliens temporarily released on orders 
of supervision who are granted discretionary employment authorization 
after the effective date of the final rule to have their employment 
authorization renewed only if: (1) DHS determines the alien's removal 
is impracticable because all countries from whom DHS has requested 
travel documents have affirmatively declined to issue such documents, 
(2) the alien shows economic necessity for employment, (3) the alien is 
employed by a U.S. employer who is a participant in good standing in E-
Verify (renewals only), and (4) the alien establishes that he or she 
warrants a favorable exercise of discretion to obtain employment 
authorization. DHS is proposing in this rule that it will consider an 
E-Verify employer to be a participant in good standing if the employer: 
(1) Has enrolled in E-Verify with respect to all hiring sites in the 
United States that employ an alien temporarily released on an order of 
supervision who has received employment authorization under this rule 
as of the time of filing of the alien's application for employment 
authorization, (2) is in compliance with all requirements of the E-
Verify program, including but not limited to verifying the employment 
eligibility of newly hired employees at those hiring sites, and (3) 
continues to be a participant in good standing in E-Verify at any time 
during which the employer employs an alien temporarily released on an 
order of supervision who has received employment authorization under 
this rule.

F. Additional Amendments

    Finally, DHS is updating the regulations at 8 CFR 241.4(j)(3), 
241.5(a), 241.5(c), and 241.13(h)(1) to remove references to obsolete 
titles of officials of the former INS, to refer generally to ICE as the 
DHS component with authority to issue orders of supervision, to reflect 
USCIS as the agency that grants employment authorization, and include 
appropriate references. This proposed change gives the Secretary and 
the Director of ICE the flexibility to delegate authorities within ICE 
to appropriate component heads, notwithstanding the particular titles 
that may be assigned to a particular position in the future.\52\ See 
proposed 8 CFR

[[Page 74216]]

241.4(j)(3), 241.5(a), 241.5(c), and 241.13(h)(1). Additionally, DHS is 
updating 8 CFR 241.5(a) to include a cross-reference to 8 CFR 
241.13(h). This cross reference will clarify that aliens temporarily 
released on an order of supervision under 8 CFR 241.13(h) are subject 
to the conditions of release provided in 8 CFR 241.5 and close the loop 
with the concomitant reference to 8 CFR 241.5 contained within 8 CFR 
241.13(h). See proposed 8 CFR 241.5(a). DHS will update all of 8 CFR 
241 in a future rulemaking to remove additional references to obsolete 
INS titles consistent with the proposed change made under section 8 CFR 
241.5(a).
---------------------------------------------------------------------------

    \52\ After the functions of the former Immigration and 
Naturalization Service were transferred to the Secretary pursuant to 
the Homeland Security Act, Public Law 107-296, 441(c) (6 U.S.C. 
251(2)), the functions were further delegated to component heads. 
ICE now has primary authority over all enforcement actions and USCIS 
has authority over adjudications of immigration benefits, including 
issuance of employment authorization documents. See DHS Delegation 
No. 7030.2, ``Delegation of Authority to the Assistant Secretary for 
U.S. Immigration and Customs Enforcement,'' (Nov. 13, 2004); DHS 
Delegation No. 0150.1, ``Delegation to the Bureau of Citizenship and 
Immigration Services,'' (June 5, 2003).
---------------------------------------------------------------------------

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if a 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated as a ``significant 
regulatory action'' that is economically significant since it is 
estimated the proposed rule likely would have an annual effect on the 
economy of $100 million or more, under section 3(f)(1) of E.O. 12866. 
Accordingly, OMB has reviewed this proposed regulation.
1. Summary
    This proposed rule is estimated to result in a reduction in the 
number of aliens on orders of supervision who are eligible for 
employment authorization, which could result in lost earnings for those 
no longer eligible. This loss of earnings would result in a transfer of 
costs from the alien to their support network, including family 
members, community groups, non-profits or third-party organizations to 
provide for the alien and any dependents. In addition, DHS estimates 
increased filing burdens associated with the proposed rule for those 
who remain eligible for employment authorization. Employers that 
currently hire alien workers who would no longer be eligible to renew 
under this rule could experience new costs due to employee turnover or 
complying with the proposed E-Verify requirement. Finally, the proposed 
rule may result in a loss of tax revenue.
    Under the proposed rule, DHS anticipates there would be six types 
of economic impacts that DHS can estimate and quantify: (1) Potential 
lost earnings for alien workers on orders of supervision who may no 
longer be eligible for employment authorization; (2) increased time 
burden for applicants to submit forms; (3) added time and costs for 
applicants to submit biometrics; (4) labor turnover costs that 
employers of alien workers on orders of supervision could incur when 
their employees' EADs expire and are not renewed; (5) costs to 
employers to enroll in and maintain an E-Verify account as a 
participant in good standing to retain alien workers on orders of 
supervision applying for renewal EADs; and (6) potential employment tax 
losses to the Federal Government.
    DHS estimates that some aliens with final removal orders and 
temporarily released on orders of supervision would be ineligible for 
discretionary EADs due to this proposed rule. However, DHS cannot 
estimate with precision what the future eligible population would be 
because of data constraints and, therefore, relies on a range with an 
upper and lower bound. The estimated costs of this proposed rule would 
range from a minimum of about $94,868, associated with biometrics and 
added burdens for relevant filing forms to a maximum of $1,496,016,941 
(annualized 7%) should no replacement labor be found for aliens on 
orders of supervision who would be ineligible for employment 
authorization under this rule.\53\ The ten-year undiscounted costs 
would range from $940,239 to $14,722,941,163. DHS estimates 
$228,789,887 (annualized 7%) as the maximum decrease in employment tax 
transfers from companies and employees to the Federal Government.
---------------------------------------------------------------------------

    \53\ DHS estimates some of the costs and benefits of this rule 
using the newly published U.S. Citizenship and Immigration Services 
Fee Schedule and Changes to Certain Other Immigration Benefit 
Request Requirements, final rule (``Fee Schedule Final Rule''), and 
associated form changes, as the baseline. 85 FR 46788 (Aug. 3, 
2020). The Fee Schedule Final Rule was scheduled to go into effect 
on October 2, 2020. On September 29, 2020, the U.S. District Court 
for the Northern District of California issued a nationwide 
injunction, which prevents DHS from implementing the Fee Schedule 
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend 
this lawsuit and is not changing the baseline for this rule as a 
result of the litigation. Should DHS not prevail in the Fee Schedule 
Final Rule litigation, this rule may reflect understated costs 
associated with biometrics fees and overstated benefits associated 
with filing Form I-765.
---------------------------------------------------------------------------

    Table 9 provides a summary of the proposed regulatory changes and 
the estimated impacts of the proposed rule.
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BILLING CODE 9111-97-C
    The impacts of reducing the number of aliens temporarily released 
on orders of supervision that are eligible for EADs include both 
potential distributional impacts (transfers) and costs. USCIS uses the 
lost compensation to aliens temporarily released on orders of 
supervision that are no longer eligible for EADs as a measure of the 
impact of this change--either as distributional impacts (transfers) 
from these aliens to others or as a proxy for businesses' cost for lost 
productivity. If all companies are able to easily find reasonable labor 
substitutes for the positions the aliens temporarily released on orders 
of supervision would have otherwise filled, DHS estimates a maximum of 
$1,495,358,741 (annualized at 7%) would be transferred from these 
workers to others in the labor force (or induced back into the labor 
force). Under this scenario, there would be no federal employment tax 
losses. Conversely, if companies are unable to find reasonable labor 
substitutes for the position the aliens temporarily released on orders 
of supervision would have filled then a maximum of $1,495,358,741 
(annualized 7%) is the estimated monetized cost of this provision, and 
$0 is the estimated monetized transfers from these aliens to other 
workers. In addition, under this scenario where jobs would go unfilled, 
there would be a loss of employment taxes to the Federal Government. 
USCIS estimates $228,789,887 (annualized 7%) as the maximum decrease in 
employment tax transfers from companies and employees to the Federal 
Government.
    The two scenarios described above represent the estimated endpoints 
for the range of monetized impacts resulting from the provisions that 
affect employment eligibility for aliens temporarily released on orders 
of supervision. There are other costs of the rule, including E-Verify, 
biometrics, labor turnover, and additional form burdens. These costs 
exist under both scenarios described above, and thus $94,868 is the 
minimum cost of the rule (annualized 7%).
    DHS is aware that the outbreak of COVID-19 will likely impact these 
estimates in the short run.\54\ As discussed above, the analysis 
presents a range of impacts, depending on if companies are able to find 
replacement labor for the jobs alien workers temporarily released on 
orders of supervision would have filled. In September 2020, the 
unemployment rate was 7.9 percent.\55\ This is an improvement on 
April's 14.7 percent which marked the highest rate and the largest 
over-the-month increase in the history of the series (seasonally 
adjusted data are available back to January 1948).\56\ By comparison, 
the unemployment rate for September 2019 was 3.5%.\57\ DHS assumes that 
during the COVID-19 pandemic, with additional available labor 
nationally, companies are more likely to find replacement labor for the 
job the alien on an order of supervision would have filled.\58\ Thus, 
in the short-run during the pandemic and the ensuing economic recovery, 
the lost compensation to EAD applicants as a result of this rule is 
likely to mean that the costs of the rule will be lower than they would 
otherwise have been. DHS notes that although the pandemic is 
widespread, the severity of its impacts varies by locality. 
Consequently, it is not clear to what extent the distribution of alien 
workers temporarily released on orders of supervision overlaps with 
areas of the country that will be more or less impacted by the COVID-19 
pandemic. Accordingly, DHS cannot estimate with

[[Page 74220]]

confidence to what extent the impacts will be transfers instead of 
costs.
---------------------------------------------------------------------------

    \54\ On March 13, 2020, the President declared that the COVID-19 
outbreak in the United States constitutes a national emergency. See 
``Proclamation on Declaring a National Emergency Concerning the 
Novel Coronavirus Disease (COVID-19) Outbreak,'' available at 
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
    \55\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/archives/empsit_10022020.pdf.
    \56\ In April 2020, the unemployment rate increased by 10.3 
percentage points to 14.7 percent. Department of Labor, Bureau of 
Labor Statistics, The Employment Situation--April 2020. Available 
at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
    \57\ Department of Labor, Bureau of Labor Statistics, The 
Employment Situation--September 2019, Employment Situation Summary 
Table A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
    \58\ The Congressional Budget Office estimates the unemployment 
rate is expected to average close to 14 percent during the second 
quarter, See: CBO's Current Projections of Output, Employment, and 
Interest Rates and a Preliminary Look at Federal Deficits for 2020 
and 2021 https://www.cbo.gov/publication/56335 April 24, 2020.
---------------------------------------------------------------------------

    DHS's assumption that all applicants with an EAD are able to obtain 
employment (discussed in further detail later in the analysis), also 
does not reflect impacts from the COVID-19 pandemic. It is not clear 
what level of reductions the pandemic will have on the ability of EAD 
holders to find jobs (as jobs are less available), or how DHS would 
estimate such an impact with any precision given available data. 
Consequently, the ranges projected in this analysis regarding lost 
compensation are expected to be an overestimate, especially in the 
short-run. The range of impacts described by the scenarios above, plus 
the consideration of the other costs, are summarized in Table 10.
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    In addition, Table 11 presents the prepared accounting statement, 
as required by the Office of Management and Budget (OMB) Circular A-4, 
showing the costs associated with this proposed regulation. Note that 
under costs, the primary estimates provided in the accounting statement 
are calculated based the minimum cost from the scenario that all aliens 
temporarily released on orders of supervision are replaced with other 
workers and the maximum cost from the scenario that no aliens 
temporarily released on orders of supervision are replaced with other 
workers (scenario presented in Tables 10(A) and (B)).

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BILLING CODE 9111-97-C
    The benefits potentially realized by the proposed rule are both 
qualitative and quantitative. Under this proposed rule, a U.S. worker 
may have a better chance of obtaining jobs that some (c)(18) alien 
workers currently hold, as the proposal would reduce employment 
authorization eligibility for this population of aliens who have been 
ordered removed from the country. Second, the proposed rule may reduce 
the incentive for aliens to remain in the United States after receiving 
a final order of removal, which could reduce the amount of government 
resources expended on enforcing removal orders for such aliens as well 
as monitoring and tracking aliens temporarily released on orders of 
supervision. Third, DHS clarifies that aliens granted CAT deferral of 
removal would no longer need to submit Form I-765 in order to become 
employment authorized after the effective date of the final rule. DHS 
estimates the total benefits for this population would range from $0 to 
$105,690 annually. Additional savings could also be accrued in the form 
of opportunity costs of time if applicants would have spent time 
submitting evidence under any of the (c)(18) considerations.
2. Background and Purpose of the Proposed Rule
    ICE works to remove aliens subject to a final order of removal from 
the United States promptly. Removal operations require integrated 
coordination, management, and facilitation efforts. The removal of 
aliens subject to final orders of removal is a national security 
priority for the United States, highlighted by E.O. 13768, ``Enhancing 
Public Safety in the Interior of the United States'' (Jan. 25, 2017).
    By law, DHS is required to remove or release a detained alien 
ordered removed within a period of 90 days (``removal period'') after 
the issuance of a final order of removal.\59\ Furthermore, the law 
expressly prohibits DHS from releasing an alien during the removal 
period if the alien was ordered removed based on criminal grounds and/
or terrorist activities.\60\
---------------------------------------------------------------------------

    \59\ INA sec. 241(a)(1). The 90-day period is extended if the 
alien fails or refuses to make timely application in good faith for 
travel or other documents necessary to the alien's departure or 
conspires or acts to prevent removal.
    \60\ INA sec. 241(a)(2).
---------------------------------------------------------------------------

    For aliens detained beyond the removal period, DHS must comply with 
the U.S. Supreme Court's decision in Zadvydas \61\ which held that an 
alien with a final order of removal cannot be kept in detention (unless 
special circumstances exist) once it has been determined that there is 
not a ``significant likelihood of removal in the reasonably foreseeable 
future.'' \62\ The Court established 6 months as the ``presumptively 
reasonable period of detention.'' After the 6-month period, ``once the 
alien provides good reason to believe there is no significant 
likelihood of removal in the reasonably foreseeable future, the 
Government must have sufficient evidence to rebut that showing.'' \63\
---------------------------------------------------------------------------

    \61\ 533 U.S. 678 (2001).
    \62\ Id.
    \63\ Id. at 701; see also 8 CFR 241.13(d).
---------------------------------------------------------------------------

    Aliens with final orders of removal who are released from ICE 
custody under INA section 241(a)(3) are subject to supervision.\64\ The 
supervision is

[[Page 74225]]

effectuated through ICE Form I-220B, Order of Supervision. Conditions 
for release typically include regular check-ins with ICE, making good 
faith efforts to obtain travel documents and travel arrangements, not 
associating with gangs, criminals, or engaging in criminal activity, 
and participating in requisite rehabilitative treatment programs.
---------------------------------------------------------------------------

    \64\ INA sec. 241(a)(3). When releasing an alien ordered removed 
on an order of supervision, ICE is not necessarily making a 
determination that all applicable foreign countries are refusing to 
accept the alien. ICE's efforts to repatriate are always ongoing and 
even after an alien is temporarily released on an order of 
supervision the foreign government could very well comply with 
repatriation efforts which would allow ICE to immediately take the 
alien back into custody and remove the alien from the United States.
---------------------------------------------------------------------------

    DHS currently extends eligibility for employment authorization to 
aliens, also known as the (c)(18) category, who have been ordered 
removed and have been temporarily released from custody under INA 
section 241(a)(3), 8 U.S.C. 1231(a)(3), on an order of supervision. See 
8 CFR 241.5(c), 274a.12(c)(18). In order for such aliens to obtain 
employment authorization, they must file a Form I-765 accompanied by 
required documentation and the proper fee. Required documentation for 
Form I-765 includes a copy of the order of removal and the order of 
supervision. USCIS would require aliens temporarily released on an 
order of supervision to submit biometrics and pay the associated $85 
fee as part of their initial or renewal EAD application. If USCIS 
approves the alien's Form I-765 under the (c)(18) category, it is valid 
for 1 year,\65\ and USCIS mails an EAD according to the mailing 
preferences indicated by the applicant. To renew an alien's employment 
authorization under the (c)(18) category, an alien must file Form I-
765, accompanied by required documentation, biometrics and the proper 
fees, to demonstrate that they remain on an order of supervision and 
continue to comply with it. USCIS may, at discretion, deny an 
application regardless of eligibility. If USCIS denies the Form I-765 
application, the agency sends a written notice to the applicant 
explaining the basis for denial.
---------------------------------------------------------------------------

    \65\ All initial and renewal EADs issued under the (c)(18) 
category are currently valid for one year upon issuance. Replacement 
EAD cards are issued for the same dates as the previous card which 
would have had a validity period of one year.
---------------------------------------------------------------------------

    As explained in detail in the preamble, DHS has determined that 
employment authorization should be limited to a subset of aliens 
ordered removed and temporarily released on orders of supervision to 
better align with the DHS enforcement mission and the Administration's 
current immigration enforcement priorities, including those outlined in 
E.O. 13768, and efforts to strengthen protections of U.S. workers. 
Therefore, DHS proposes to amend 8 CFR 274a.12(c)(18) to eliminate 
eligibility for employment authorization for aliens temporarily 
released on orders of supervision unless DHS has determined that the 
alien's removal is impracticable because all countries from whom DHS 
has requested travel documents have affirmatively declined to issue a 
travel document.
    Further, DHS intends to require aliens who qualify under this 
exception to establish an economic necessity for employment during the 
period they are on orders of supervision and expand the current lists 
of factors it considers as a matter of discretion when adjudicating an 
application for employment authorization from aliens on orders of 
supervision to include the alien's compliance with the conditions for 
release, and the alien's criminal history, including but not limited to 
any criminal arrests, charges, or convictions subsequent to the alien's 
release on an order of supervision.
    Meanwhile, under proposed 8 CFR 274a.12(a)(10), aliens who have 
received a grant of CAT deferral of removal, as described in 8 CFR 
208.17 and 1208.17, would be eligible for an EAD based solely on the 
grant of deferral, similar to aliens who are granted withholding of 
removal based on INA 241(b)(3), 8 U.S.C. 1231(b)(3), or the regulations 
implementing CAT. Aliens who fall under the 8 CFR 274a.12(a)(10) are 
not subject to requirements to apply to DHS to obtain employment 
authorization before they can begin work. However, the alien is 
required to apply (i.e., submit Form I-765) in order to receive a 
physical EAD if they want a document evidencing their employment 
authorization pursuant to their grant of withholding or deferral. 
Currently, aliens granted CAT deferral of removal are required to apply 
for an EAD under the (c)(18) category. Upon the effective date of the 
final rule, these aliens would no longer be required to meet the 
requirements of the (c)(18) category or pay the initial $410 
application fee for employment authorization since they would be able 
to apply for an EAD under the (a)(10) category, which is fee exempt for 
initial applicants. However, if these aliens want a physical EAD card 
as evidence of their employment authorization they would need to submit 
Form I-765.
    Additionally, USCIS proposes to amend regulations at 8 CFR 
274a.12(c)(18) and 274a.13(a) to require renewal applicants be employed 
by an E-Verify employer, to clarify the application and evidentiary 
requirements for such aliens seeking initial and renewal employment 
authorization under the (c)(18) category, and to codify the validity 
period of a (c)(18) EAD. See proposed 8 CFR 274a.12(c)(18)(iii) and 
274a.13(a)(3)(ii). Under the proposed rule, a renewal EAD would only be 
granted to those applicants eligible for an EAD under the proposed 
exception and who establish that they are employed by a U.S. employer 
that is a participant in good standing in DHS's employment eligibility 
verification system (E-Verify) by providing their U.S. employer's E-
Verify Company Identification Number and employer's name as listed in 
E-Verify. Renewal applications for aliens who cannot establish that 
they are employed by an E-Verify employer would be denied and fees 
would not be returned.
    DHS proposes to apply changes made by this rule only to initial and 
renewal applications under 8 CFR 274a.12(c)(18) filed on or after the 
effective date of the final rule. DHS proposes to allow aliens 
temporarily released on orders of supervision who are already 
employment authorized prior to the final rule's effective date to 
remain employment authorized until the expiration date on their EAD, 
unless the card is revoked under 8 CFR 274a.14. USCIS would continue 
processing any pending application for a replacement EAD received 
before the effective date and receiving new applications for 
replacement EADs because such adjudications are not considered a new 
grant of employment authorization but a replacement of an EAD based on 
a previously authorized period.
3. Population
    The populations that could be affected by this proposed rule 
consist of work-authorized aliens who have final orders of removal but 
who are temporarily released from custody on an order of supervision 
and aliens granted CAT deferral of removal. DHS estimates the affected 
population based on historical data for FY 2010 to FY 2019.
Eligibility for Employment Authorization for Aliens on Orders of 
Supervision
    Table 12 shows the annual receipts and approvals for initial and 
renewal applications of employment authorization for aliens temporarily 
released on an order of supervision using Form I-765 for FY 2010 to FY 
2019.\66\
---------------------------------------------------------------------------

    \66\ This data was provided by the USCIS Office of Performance 
and Quality (OPQ) and can be found online at https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-19.pdf. Note that replacement 
filings and pending counts are not presented because they would not 
be impacted by the proposed rule and are thus immaterial to the 
analysis.

[[Page 74226]]



      Table 12--Total Annual Form I-765 Receipts and Approvals for Aliens Temporarily Released on Orders of
                                         Supervision, FY 2010 to FY 2019
----------------------------------------------------------------------------------------------------------------
                                                              Initial                         Renewal
                   Fiscal year                   ---------------------------------------------------------------
                                                     Receipts        Approvals       Receipts        Approvals
----------------------------------------------------------------------------------------------------------------
2010............................................           6,420           5,559           9,328           8,297
2011............................................           6,827           5,906          12,361          11,765
2012............................................           8,446           7,719          14,242          13,730
2013............................................           9,163           7,091          17,316          15,119
2014............................................          10,658           8,681          19,427          17,441
2015............................................           9,628           8,748          22,801          21,236
2016............................................           8,665           7,499          26,102          24,464
2017............................................           6,235           5,273          26,332          21,274
2018............................................           4,408           3,433          20,640          20,151
2019............................................           5,697           4,071          19,306        * 21,350
----------------------------------------------------------------------------------------------------------------
* The number of approved applications for renewal EADs in FY 2019 exceed the number of receipts since some
  renewal EAD applications were received in a previous fiscal year.

    The number of initial approved employment authorizations increased 
from 5,559 in FY 2010 to 8,748 in FY 2015, then declined to 3,433 in FY 
2018 before increasing to 4,071 in FY 2019. The number of renewal 
approvals increased from 8,297 in FY 2010 to 24,464 in FY 2016 before 
decreasing to about 21,000 renewal approvals annually from FY 2017 to 
FY 2019. Although DHS estimates this proposed rule would reduce the 
number of aliens eligible for employment authorization and anticipates 
a decline in (c)(18) receipts and approvals for both initial and 
renewals, DHS is unable to determine the magnitude of decline for 
reasons discussed further in this analysis.
    In order to project future growth in the number of initial receipts 
and approvals, this analysis uses the 10-year annual percentage growth 
rates of -1.2 percent for initial receipts (Table 13).\67\ DHS 
recognizes that the 5-year annual percentage growth rate also shows a 
decline (-10.0 percent).\68\ For this analysis, DHS chooses the more 
conservative projection of initial receipts by using the 10-year annual 
percentage growth rate (-1.2 percent). By choosing the 10-year annual 
percentage growth rate, the projection (or baseline) will be higher for 
initial receipts which will lead to a greater range of potential cost 
estimates.
---------------------------------------------------------------------------

    \67\ Calculation: (((FY 2019 Initial Receipts 5,697/FY 2010 
Initial Receipts 6,420) [caret] (1/10))-1) * 100 = -1.2 percent.
    \68\ Calculation: (((FY 2019 Initial Receipts 5,697/FY 2015 
Initial Receipts 9,628) [caret] (\1/5\))-1) * 100 = -10.0 percent.

          Table 13--Annual Percentage Growth Rates of Receipts
------------------------------------------------------------------------
              Fiscal years                    Initial         Renewal
------------------------------------------------------------------------
2015-2019...............................           -10.0            -3.3
2010-2019...............................            -1.2             7.5
------------------------------------------------------------------------
Source: USCIS analysis.

    To project the number of renewal receipts, DHS also considered the 
5- and 10-year annual percentage growth rates. Table 13 shows the 5-
year annual percentage growth rate in the number of renewal receipts is 
-3.3 percent and the 10-year annual percentage growth rate is 7.5 
percent.\69\ Similar to the growth rates for the initial receipts, 
renewal receipts have a negative annual percentage growth rates over 
the 5-year period.
---------------------------------------------------------------------------

    \69\ Calculations:
    (((FY 2019 Renewal Receipts 19,306/FY 2015 Renewal Receipts 
22,801) [caret] (\1/5\))-1) * 100 = -3.3 percent.
    (((FY 2019 Renewal Receipts 19,306/FY 2010 Renewal Receipts 
9,328) [caret] (1/10))-1) * 100 = 7.5 percent.
---------------------------------------------------------------------------

    To project renewal receipts going forward, DHS acknowledges that 
aliens temporarily released on orders of supervision have removal 
orders and are continually being deported from the United States on an 
ongoing basis. Additionally, the declining growth rates for initial 
receipts would, at some point, result in either a plateau or a decrease 
for renewal receipts. Therefore, we do not find it reasonable to use 
the 10-year annual percentage growth rate of 7.5 percent to project 
renewal receipts. Therefore, this analysis uses the 5-year annual 
percentage growth rate of -3.3 percent to project a decline in the 
number of renewal receipts.
    In order to estimate initial and renewal approvals, DHS recognizes 
that approvals have generally moved in line with receipts.\70\ DHS 
recognizes that the number of approvals could occasionally differ from 
or lag receipts, but over time we would expect approvals to mostly move 
in line with receipts. Over the 10-year period from FY 2010 to FY 2019, 
the average initial approval rate was approximately 84 percent of 
initial receipts and the average renewal approval rate was 
approximately 93 percent of renewal receipts.\71\
---------------------------------------------------------------------------

    \70\ Exceptions for initials include FY 2013 when initial 
approvals declined while initial receipts increased; exceptions for 
renewals include FY 2017 when renewal receipts increased slightly 
while renewal approvals declined and FY 2019 when the number of 
renewal approvals exceeded the number of renewal receipts received.
    \71\ Calculations:
    (6,398 (initial approvals 10-year average)/7,615 (initial 
receipts 10-year average)) x 100 = 84 percent (rounded).
    (17,483 (renewal approvals 10-year average)/18,786 (renewal 
receipts 10-year average)) x 100 = 93 percent (rounded).
---------------------------------------------------------------------------

    To project FY 2020 initial receipts, the 10-year annual percentage 
growth rate of -1.2 percent (Table 13) is multiplied by the number of 
initial receipts from FY 2019, 5,697 (Table 12), which equals -68 
(rounded). Subtracting 68 from 5,697 equals 5,629 (Table 14). The FY 
2020 initial approvals are calculated by multiplying the 10-year 
average initial approval rate of 84 percent by the estimated number

[[Page 74227]]

of initial receipts from FY 2020, 5,629, which equals 4,728 
(rounded).\72\ The FY 2019 renewal receipts, 19,306, is multiplied by 
the 5-year annual percentage growth rate of -3.3 to get -637 
(rounded).\73\ Subtracting 637 from the FY 2019 renewal receipts equals 
18,669. The 18,669 is then multiplied by the 10-year average renewal 
approval rate of 93 percent, which equals 17,362 (rounded) to get the 
FY 2020 renewal approvals.\74\ To project receipts for FY 2021, the 
same process was repeated using the calculated FY 2020 numbers in place 
of those from FY 2019. Approvals were then calculated based on the 
projected receipts for FY 2021. The process was then repeated for 
subsequent years. These projections are shown in Table 14 and are used 
as the baseline for this rule.
---------------------------------------------------------------------------

    \72\ Calculation: 5,629 (FY 2020 estimated initial receipts) x 
84 percent = 4,728 estimated FY 2020 initial approvals.
    \73\ Calculation: FY 2019 renewal receipts 19,306 x 5-year 
annual percentage growth rate -0.033 = -637.
    \74\ Calculation: 18,669 (FY 2020 estimated renewal receipts) x 
93 percent = 17,362 estimated FY 2020 renewal approvals.

 Table 14--Projected Total Annual Form I-765 Receipts and Approvals for Aliens Temporarily Released on Orders of
                                          Supervision, FYs 2020 to 2029
----------------------------------------------------------------------------------------------------------------
                                                              Initial                         Renewal
                   Fiscal year                   ---------------------------------------------------------------
                                                     Receipts        Approvals       Receipts        Approvals
----------------------------------------------------------------------------------------------------------------
2020............................................           5,629           4,728          18,669          17,362
2021............................................           5,561           4,671          18,053          16,789
2022............................................           5,494           4,615          17,457          16,235
2023............................................           5,428           4,560          16,881          15,699
2024............................................           5,363           4,505          16,324          15,181
2025............................................           5,299           4,451          15,785          14,680
2026............................................           5,235           4,398          15,264          14,196
2027............................................           5,173           4,345          14,761          13,727
2028............................................           5,110           4,293          14,274          13,274
2029............................................           5,049           4,241          13,802          12,836
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    This proposed rule would eliminate the eligibility for employment 
authorization for aliens temporarily released on orders of supervision 
with one exception. The exception is for aliens for whom DHS has 
determined removal is impracticable because all countries from which 
DHS has requested travel documents have affirmatively declined to issue 
such documents. In order to estimate the number of aliens whose removal 
is impracticable for the reason stated, USCIS obtained data from ICE on 
the number of aliens released from custody who have been unable to 
obtain travel documents over the last 5 fiscal years. Table 15 shows 
the number of aliens temporarily released on orders of supervision 
denied a travel document in the corresponding fiscal year. DHS 
estimates this proposed rule would result in fewer aliens temporarily 
released on orders of supervision who are eligible for employment 
authorization and would result in a maximum of 459 aliens remaining 
eligible for an employment authorization under the exception.

   Table 15--Aliens Released From ICE Custody, Unable To Obtain Travel
                      Documents, FY 2015 to FY 2019
------------------------------------------------------------------------
                       Fiscal year                             Total
------------------------------------------------------------------------
2015....................................................             369
2016....................................................             411
2017....................................................             324
2018....................................................             530
2019....................................................             659
                                                         ---------------
  5-year Average........................................             459
------------------------------------------------------------------------
Source: DHS-ICE ERO, LESA Statistical Tracking Unit.

    As noted in the preamble, DHS is proposing to consider the alien's 
criminal history, including but not limited to criminal activities 
subsequent to his or her release on an order of supervision in 
determining whether the alien warrants DHS's favorable exercise of 
discretion to obtain an EAD. While there are aliens with an order of 
supervision who are known convicted criminals, DHS is unable to 
precisely estimate the number of aliens that could potentially be 
denied an EAD as a matter of discretion should this proposed rule be 
promulgated as a final rule. DHS is proposing to expressly consider the 
alien's criminal history as a factor in determining whether the alien 
warrants a favorable exercise of discretion in granting an EAD. The 
discretionary analysis is case specific and typically assessed after an 
officer has determined that the alien meets all applicable threshold 
eligibility requirements. It involves the review of all relevant, 
specific facts and circumstances in an individual case and weighing all 
the positive factors present in a particular case against any negative 
factors in the totality of the record. Further, DHS does not know the 
number of excepted aliens that would be denied as a matter of 
discretion because of subsequent criminal convictions. For these 
reasons, we cannot estimate how many aliens would be denied as a matter 
of discretion based on criminal history.
Aliens Granted CAT Deferral of Removal
    DHS also proposes to revise the (a)(10) employment authorization 
category to include aliens who are granted CAT deferral of removal as 
employment authorized based solely on the grant of deferral. Table 16 
shows the number of CAT cases granted deferral of removal for FY 2014 
to FY 2018.\75\ Since FY 2015, the number of CAT cases granted deferral 
of removal has trended upward reaching a high of 177 cases in FY 2018. 
The 5-year average number of cases is approximately 147.
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    \75\ The Department of Justice Statistics Yearbook website was 
last updated on August 30, 2019 with FY 2018 data. The analysis will 
be updated with FY 2019 when it becomes available.

[[Page 74228]]



    Table 16--Cases Granted CAT Deferral of Removal, FY 2014-FY 2018
------------------------------------------------------------------------
                       Fiscal year                             Cases
------------------------------------------------------------------------
2014....................................................             121
2015....................................................             121
2016....................................................             140
2017....................................................             175
2018....................................................             177
                                                         ---------------
  5-year average........................................             147
------------------------------------------------------------------------
Source: Department of Justice Statistics Yearbook, https://www.justice.gov/eoir/statistical-year-book.

    The population of aliens who have been granted deferral of removal 
based on the regulations implementing CAT are currently regulated to 
apply for employment authorization under the (c)(18) category. 
Currently, USCIS does not have a breakout for the number of aliens who 
have been granted CAT deferral of removal who have applied or been 
approved for an initial or renewal EAD. Under the proposed rule, this 
population would be employment authorized based solely on such a grant 
and would only need to apply for the physical EAD card under the 
(a)(10) category if they want a document evidencing their employment 
authorization pursuant to the grant of deferral of removal.
Estimated Eligible Employment Authorizations
    Based on the exception (459) and the grant of CAT deferral of 
removal exception (147), DHS estimates an upper bound estimate for 
initial (c)(18) EAD approvals that would remain eligible for employment 
authorization under this rule in the future is 606 annually. DHS 
recognizes this upper bound estimate does not take into account the 
number of aliens who would no longer be eligible due to subsequent 
convictions. DHS also does not know how many of these aliens would be 
eligible or ineligible under the economic necessity requirement or the 
number that would apply for or be denied for other considerations, such 
as the alien's compliance with their order of supervision conditions, 
and the alien's criminal history, including but not limited to any 
criminal arrests, charges, or convictions subsequent to the alien's 
release from custody on an order of supervision. DHS recognizes that if 
any of the 459 potential approvals who may fall under the exception do 
not apply for work authorization or are denied employment authorization 
that the upper bound of 606 would be an overestimate. Thus, we use an 
upper bound estimate of 606 assuming 100 percent of aliens temporarily 
released on orders of supervision who have been unable to obtain travel 
documents would remain employment eligible under this rule, because 
choosing any other upper bound would be speculative (Table 17(B) column 
A). We use a lower bound estimate of 147 (Table 17(A) column A) since 
all aliens who are granted CAT deferral of removal would continue to be 
employment authorized. These upper and lower bound initial receipts 
estimates are applied, unchanged, into the future. Although initial 
receipts overall have been declining (Table 12), the upper and lower 
bounds depend on the average number of aliens released from ICE custody 
who are unable to obtain travel documents and aliens granted CAT 
deferral of removal, both of which have experienced periods of 
stability and growth over their respective five-year periods of 
analysis (Tables 15 and 16). For this analysis, DHS relies on the five-
year averages for these populations as there are various factors 
outside of this rulemaking may result in a decline or rise of in the 
number of aliens identified as unable to obtain travel documents or 
granted CAT deferral of removal. However, DHS cannot predict with 
certainty at this time if the trend in the size of these populations 
would increase, decrease, or remain stable. Therefore, DHS uses the 
respective 5-year averages for this analysis.
    DHS estimates that the lower bound share of initial EADs under the 
baseline that would continue to be eligible for renewal under this 
proposed rule ranges from 3.1 percent in FY 2020 to 3.5 percent in FY 
2029 (Table 17(A) column C).\76\ Under the assumption that the same 
share of initial approvals would be eligible as renewals, we multiply 
the renewal receipt and approval populations by these percentages to 
obtain the corresponding lower bound renewal EAD estimates for each 
fiscal year (Table 17(A) columns E and G). Further, the upper bound is 
also estimated assuming that the same share of initial approvals would 
be eligible as renewals. Table 17(B) repeats the estimates for the 
upper bound populations for initials and renewals.
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    \76\ Calculations: For example, for FY2020--(147 estimated lower 
bound/4,728 projected number of initial approvals) x 100 = 3.1 
percent (rounded). 147 estimated upper bound/4,241 projected number 
of initial approvals) x 100 = 3.5 percent (rounded).
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BILLING CODE 9111-97-C
    DHS recognizes that the projected lower bound range of 449 to 538 
for renewal approvals may not fully account for the number of aliens 
who would no longer be eligible for employment authorization due to the 
proposed E-Verify requirement if their employers are not enrolled and 
opt not to enroll in E-Verify, and if they are unable to find 
alternative employment with an E-Verify employer. Some renewal 
applicants may also not be currently employed and therefore would not 
meet the new requirements for renewal. Additionally, DHS does not know 
how many of these aliens would be eligible under the economic necessity 
requirement or determined not to warrant employment authorization as a 
matter of discretion due to subsequent convictions. DHS recognizes that 
if any of the estimated range of 449 to 538 renewal receipts do not 
apply for employment authorization or are denied employment 
authorization that this lower bound could be even lower.

[[Page 74230]]

Renewal Applicants for Employment Authorization--E-Verify
    DHS proposes to allow aliens on orders of supervision who are 
granted employment authorization after the effective date of the final 
rule to have their employment authorization renewed only if they meet 
the exception and they establish that they are employed by a U.S. 
employer who is a participant in good standing in DHS's employment 
eligibility verification system (E-Verify) by providing their U.S. 
employer's E-Verify Company Identification Number and the employer's 
name as listed in E-Verify.
    Since this rule proposes to eliminate eligibility for employment 
authorization for aliens temporarily released on orders of supervision, 
the impact on the renewal population would depend on which aliens 
remain eligible and if the alien's employer already participates in E-
Verify or would be willing to enroll and participate in E-Verify if the 
employer is not enrolled. Because of the uncertainty regarding 
eligibility, DHS is unable to estimate a range for the renewal 
population that would be impacted by this provision and attempting to 
do so would be speculative. However, DHS acknowledges there would be 
renewal applicants who would be impacted by this provision.
Employer Population
    DHS recognizes that this proposed rule would impact employers who 
currently, or will in the future, employ (c)(18) alien workers. 
However, DHS cannot precisely estimate the number of employers that 
could incur costs because (c)(18) employment authorization is 
considered to be ``open market,'' where alien workers are not tied to a 
specific employer. Such employment also does not require a Labor 
Condition Application (LCA) or a Temporary Labor Certification (TLC) 
from the U.S. Department of Labor (DOL), or other employer data at any 
point in the EAD process (initial, renewal, or replacement stage). DHS 
recognizes that many factors influence whether an employer participates 
in the E-Verify program. While E-Verify is a free, voluntary program, 
some employers are required to enroll in the program as a condition of 
federal contracting, or as a requirement of state legislation or other 
applicable laws. However, DHS cannot predict the number of employers 
who would use E-Verify or how many would experience labor turnover due 
to this proposed rule. Further, DHS does not know the number of 
employers that would choose to enroll in E-Verify to retain their 
(c)(18) renewal alien employees or the overall number of employees for 
whom these entities would create an E-Verify case, should they enroll. 
DHS is also unable to determine the number of employers whose (c)(18) 
alien employees would remain employment eligible as a result of this 
proposed rule. DHS welcomes public comment or data on employers who 
enroll in the E-Verify program to retain (c)(18) alien renewal 
employees as well as the overall number of employees for whom employers 
would create E-Verify cases, should they enroll employees. DHS notes 
that this provision may act as a barrier to a company hiring or 
continuing to employ a (c)(18) employment authorized alien should the 
company make the choice to not enroll in E-Verify. Such barriers 
contribute to the cost calculation of this rule by increasing the 
potential for turnover costs incurred by U.S. businesses--even in 
situations where a (c)(18) employee remains employment authorized.
4. Transfers, Costs and Benefits of the Proposed Rule
Transfers and Costs
    This section presents the costs and benefits associated with the 
proposed rule. The impacts of the proposed provisions are estimated in 
comparison with a baseline that assumes no proposed action will be 
implemented.
Proposal Regarding EAD Eligibility
    DHS anticipates that revising eligibility and introducing new 
evidentiary requirements for (c)(18) EADs could have several impacts, 
including potential lost earnings to alien workers temporarily released 
on an order of supervision after receiving a final order of removal, 
the cost associated with an increase of a 30 minute time burden to 
complete Form I-765, as well as the costs of filing an additional form 
(Form I-765WS) and submitting biometrics.
    The proposed rule is estimated to result in a reduction in the 
number of aliens temporarily released from custody on an order of 
supervision that are eligible for EADs. The impacts of reducing the 
number of aliens temporarily released on orders of supervision that are 
eligible for EADs include both potential distributional impacts 
(transfers) and costs. USCIS uses lost compensation to aliens 
temporarily released on an order of supervision that are no longer 
eligible for EADs as a measure of the impact of this change--either as 
distributional impacts (transfers) from these aliens to others or as a 
proxy for businesses' cost for lost productivity.
    Companies may incur opportunity costs by having to choose the next 
best alternative to filling a job an alien temporarily released on 
orders of supervision would have filled. DHS is unable to determine 
what an employer's next best alternative may be for those companies. As 
a result, DHS does not know the portion of overall impacts of this rule 
that are transfers or costs. If companies can find replacement labor 
for the positions the aliens temporarily released on orders of 
supervision would have filled, removing EAD eligibility for these 
aliens would result in primarily distributional effects in the form of 
transfers from aliens temporarily released on orders of supervision to 
others that are currently in the U.S. labor force (or workers induced 
to return to the labor market), possibly in the form of additional work 
hours or overtime pay. DHS acknowledges that there may be additional 
opportunity costs to employers such as additional costs associated with 
searching for new employees. If companies cannot find reasonable 
substitutes for the labor the aliens temporarily released on orders of 
supervision would have provided, removing EAD eligibility for these 
aliens would primarily result in costs to those companies through lost 
productivity and profits.
    DHS has no information on wages or occupations of alien workers 
temporarily released on orders of supervision, at the initial or 
renewal stage, since these alien workers obtain an open-market EAD that 
does not include or require any data on their employment.
    The federal minimum wage is currently $7.25.\77\ The use of the 
federal minimum wage is grounded in the notion that most of the 
relevant EAD holders would not have been in the labor force long and 
would thus not be expected to earn relatively high wages. However, in 
this proposed rulemaking, we rely on the ``effective'' minimum wage of 
$11.80. As is reported by The New York Times ``[t]wenty-nine states and 
the District of Columbia have state-level minimum hourly wages higher 
than the federal [minimum wage],'' as do many city and county 
governments. This analysis in The New York Times estimates that ``the 
effective minimum

[[Page 74231]]

wage in the United States . . . [was] $11.80 an hour in 2019.'' \78\ 
DHS accounts for worker benefits by calculating a benefits-to-wage 
multiplier using the most recent DOL, Bureau of Labor Statistics (BLS) 
report detailing the average employer costs for employee compensation 
for all civilian workers in major occupational groups and industries. 
DHS estimates the benefits-to-wage multiplier is 1.46 and, therefore, 
is able to estimate the full opportunity cost per applicant, including 
employee wages and salaries and the full cost of benefits such as paid 
leave, insurance, and retirement, etc.\79\ Although the federal minimum 
wage could be considered a lower bound income for the population of 
interest, DHS calculates the total rate of compensation for the 
effective minimum hourly wage is $17.23, which is 62.7 percent higher 
than the federal minimum wage.\80\
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    \77\ See 29 U.S.C. 206--Minimum wage, available at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title29/html/USCODE-2011-title29-chap8-sec206.htm (accessed May 19, 2020). See also U.S. Department 
of Labor, Wage and Hour Division. The minimum wage in effect as of 
May 19, 2020. Available at https://www.dol.gov/general/topic/wages/minimumwage.
    \78\ ``Americans Are Seeing Highest Minimum Wage in History 
(Without Federal Help)'' Ernie Tedeschi, The New York Times, April 
24, 2019. Accessed at https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited 
August 21, 2020).
    \79\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
= $37.10/$25.47 = 1.458 = 1.46 (rounded). See Economic News Release, 
Employer Cost for Employee Compensation (March 2020), U.S. Dept. of 
Labor, BLS, Table 1. Employer costs per hour worked for employee 
compensation and costs as a percent of total compensation: Civilian 
workers, by major occupational and industry group. March 19, 2020, 
available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (last visited March 24, 2020).
    \80\ Calculations (1) for effective minimum wage: $11.80 hourly 
wage x benefits burden of 1.46 = $17.23; (2) (($17.23 wage-$10.59 
wage)/$10.59)) wage = 0.627, which rounded and multiplied by 100 = 
62.7 percent.
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    DHS does not rule out the possibility that some portion of the 
population might earn the average wage for all occupations, but without 
empirical information, DHS believes that including a range with the 
lower bound relying on the effective minimum wage is justifiable. 
Therefore, this analysis uses both the effective minimum hourly wage 
rate of $11.80 to estimate a lower bound and an average wage rate for 
all occupations of $25.72 as an upper bound in consideration of the 
variance in average wages across states.\81\ Therefore, DHS calculates 
the average total rate of compensation for all occupations as $37.55 
per hour, where the mean hourly wage is $25.72 per hour worked and 
average benefits are $11.83 per hour.\82\ All of the quantified 
estimates of costs and transfer payments in this analysis incorporate 
lower and upper bound ranges based on the effective minimum hourly wage 
and the average hourly wage across all occupations.
---------------------------------------------------------------------------

    \81\ The average wage for all occupations is found Department of 
Labor, Bureau of Labor Statistics, May 2019 National Occupational 
Employment and Wage Estimates. The data is found at: https://www.bls.gov/oes/2019/may/oes_nat.htm#00-0000 (last visited March 19, 
2020).
    \82\ The calculation of the weighted mean hourly wage for 
applicants: $25.72 per hour x 1.46 = $37.5512 = $37.55 (rounded) per 
hour.
---------------------------------------------------------------------------

    Estimated impacts in this analysis include lost potential earnings 
to applicants. Since the current validity period of a (c)(18) EAD is up 
to one year, DHS multiplied the total rate of compensation using the 
average effective minimum hourly wage rate of $17.23 and the average 
hourly wage rate across all occupations of $37.55 by 2,080 hours, the 
typical annual number of work hours, to estimate the annual earnings of 
$35,838 and $78,106, respectively, for each applicant.\83\ Table 18 
shows the two population ranges for initial and renewal approvals for 
the two ranges of wage estimates for aliens temporarily released on 
orders of supervision and the corresponding potential lost earnings. 
Table 18(A) shows cost estimates for the lower and upper bound range of 
initial EAD approvals based on the lower bound wage annual earnings of 
$35,838. The total earnings for each population under the rule based on 
the projections developed in the ``Population'' section are reported in 
Columns B, D and F. Columns G and H present the potential lost 
earnings, by subtracting, from the current baseline (column F), the 
potential earnings from rule populations (columns B and D). Similarly, 
Table 18(B) repeats the estimates for the lower and upper bound range 
of initial EAD approvals based on the upper bound (average) wage annual 
earnings of $78,106. Tables 18(C) and 18(D) repeat the estimates from 
Table 18(A) and 18(B) for the lower and upper bound ranges of renewal 
EAD approvals based on the lower and upper bound wage annual earnings, 
respectively.
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    \83\ Calculations: 2,080 typical annual work hours x $17.23 the 
total rate of compensation using the average state minimum wage = 
$35,838 (rounded). 2,080 typical annual work hours x $37.55 the 
total rate of compensation using the average wage = $78,106 
(rounded).

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[[Page 74233]]


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BILLING CODE 9111-97-C
    DHS uses the lost compensation to aliens temporarily released on 
orders of supervision as a measure of the overall impact of removing 
eligibility for a (c)(18) EAD--either as distributional impacts 
(transfers) or as a proxy for businesses' cost for lost productivity. 
It does not include additional costs to businesses for lost profits and 
opportunity costs or the distributional impacts for those in an 
applicant's support network. As shown in Table 18, the potential lost 
earnings depend on the number of aliens released temporarily on orders 
of supervision who remain eligible for an EAD and continue to work, as 
well as their wage rate. Over the 10-year period from FY 2020 to FY 
2029, the total lost earnings would range from $6,038,201,268 to 
$14,716,520,096.\84\ Annualized at 7 percent, lost earnings for initial 
and renewal EAD holders would range from $614,037,170 to $ 
1,495,358,741 (Table 22).\85\
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    \84\ Calculations: $1,388,614,986 (10-year total initial upper 
bound costs) + $4,649,586,282 (10-year total renewal upper bound 
costs) = $6,038,201,268 (minimum 10-year total lower bound costs); 
$3,384,879,722 (10-year total initial upper bound costs) + 
$11,331,540,374 (10-year total renewal upper bound costs) = 
$14,716,420,096 (maximum 10-year total upper bound costs).
    \85\ An important assumption relied upon in this analysis is 
that each holder of an approved EAD has entered the labor force and 
is working (when the rule becomes effective). DHS relies on this 
assumption on the grounds that individuals would not have expended 
the direct filing and time-related opportunity costs of applying for 
an EAD if they did not intend to recoup an economic benefit from 
doing so. In reality, some EAD holders may not be employed for any 
number of reasons--including normal labor market frictions--that 
have nothing to do with this rule. In addition, DHS has received 
information that some individuals seek an EAD for purposes of paper 
documentation and may not intend to work.

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[[Page 74234]]

    EAD holders who would no longer be eligible to renew their 
employment authorization under the proposed eligibility criteria in 
this rule would incur lost earnings. Additionally, DHS acknowledges the 
potential for additional lost compensation to renewal applicants if 
their employers are not currently enrolled in E-Verify and opt not to 
enroll in the E-Verify program. In such cases, renewal applicants could 
lose earnings if they are unable to find employment with an employer 
who participates in E-Verify.
    DHS recognizes that, excluding the effects of inflation, earnings 
generally rise over time and the earnings of EAD holders could be 
larger in the future than estimated in this analysis. Moreover, since 
EAD renewals, by necessity of order, follow in time after an initial 
EAD approval, wages and, hence, total compensation, earned could be 
higher for renewals. Accordingly, this effect could bias the estimate 
of earnings losses downward. However, we see no tractable way at 
present to incorporate this possibility into the quantified estimates.
    DHS welcomes public comments and data concerning the 
appropriateness of using the effective minimum wage rate as a lower 
bound and the average wage rate as an upper bound for (c)(18) workers 
and the resulting impacts presented.
    In addition to the above quantified impacts, there could be 
qualitative impacts for aliens on orders of supervision who would no 
longer be eligible for employment authorization. For the (c)(18) 
population that will not be able to renew their EAD or obtain an 
initial EAD, there would likely be an impact in terms of lost income 
which could pose economic hardships. Members of this population may 
need to rely on their support networks for financial and social 
assistance, which could involve, but may not be limited to, family 
members and friends, religious and charitable organizations, private 
non-profit providers, state and local governments, and NGOs. DHS 
believes that the immediate indirect impact of this rule to an 
applicant's support network is likely not significantly more than the 
wages and benefits the applicant would have earned without this rule.
Costs to Applicants To Submit Biometrics
    This rule proposes to codify a biometrics requirement for aliens 
who file for an EAD under the (c)(18) category. Currently, all (c)(18) 
applicants receive an appointment notice from USCIS to submit their 
biometrics \86\ at an Application Support Center (ASC) to, among other 
things, assist in identity verification and facilitate (c)(18) EAD card 
production. They are also required to pay the $85 biometric services 
fee.\87\ This rule would codify the requirement for aliens to submit 
biometrics and pay the proposed $30 biometric services fee. The 
biometrics requirement would apply to (c)(18) Form I-765 filers, for 
both initial and renewal EAD applications. In addition, DHS proposes to 
use the biometrics submitted by (c)(18) EAD applicants to screen for 
criminal history.
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    \86\ At present, biometrics collection generally refers to the 
collection of fingerprints, photographs, and signatures. See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including 
fingerprints, photographs, and digital signature) (last visited May 
15, 2020).
    \87\ USCIS was previously authorized to collect an $85 biometric 
services fee. However, the recently promulgated fee rule 
incorporated the biometric services costs into the underlying 
immigration benefit request fees for which biometric services are 
applicable in the recent fee rule and maintained a separate $30 
biometric services fees for certain benefit requests. See DHS, U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements, 85 FR 46788 
(Aug. 3, 2020) (Fee Rule).
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    The submission of biometrics requires that aliens travel to an ASC 
for the biometric services appointment. In past rulemakings, DHS 
estimated that the average round-trip distance to an ASC is 50 miles, 
and that the average travel time for the trip is 2.5 hours.\88\ The 
cost of travel also includes a mileage charge based on the estimated 50 
mile round trip at the 2020 General Services Administration (GSA) rate 
of $0.58 per mile.\89\ Because an individual alien would spend 1 hour 
and 10 minutes (1.17 hours) at an ASC to submit biometrics, summing the 
ASC time and travel time yields 3.67 hours.\90\ At the lower and upper 
wage bounds, the opportunity costs of time to submit biometrics 
services are $63.23 and $137.81.\91\ The travel cost is $29, which is 
the per mileage reimbursement rate of $0.58 multiplied by 50-mile 
travel distance. Summing the time-related and travel costs generates a 
per person biometrics submission cost of $92.23 at the lower bound wage 
and $166.81 at the upper bound wage.\92\ Combining these costs with the 
biometric services fee totals a per person biometrics submission cost 
of $122.23 and $196.81 at the respective lower and upper wage 
rates.\93\
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    \88\ See ``Employment Authorization for Certain H-4 Dependent 
Spouses; Final rule,'' 80 FR 10284 (25 Feb. 2015); and ``Provisional 
and Unlawful Presence Waivers of Inadmissibility for Certain 
Immediate Relatives; Final Rule,'' 78 FR 536, 572 (3 Jan. 2013).
    \89\ The General Services Administration mileage rate of $0.58, 
effective January 1, 2020, available at: https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last visited May 7, 2020).
    \90\ Source for biometric time burden estimate: Paperwork 
Reduction Act (PRA) Supporting Statement for Form I-485 (OMB control 
number 1615-0023). The PRA Supporting Statement can be found at 
Question 12 on Reginfo.gov at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201706-1615-001.
    \91\ Calculations: 3.67 (total time in hours to submit 
biometrics) x $12.05 (prevailing wage for 1 hour of work) = $44.22; 
3.67 (total time in hours to submit biometrics) x $37.55 (average 
wage for 1 hour of work) = $137.81.
    \92\ Calculations: $29 (cost of travel) + $63.23 (time-related 
costs at lower bound wage) = $92.23; $29 (cost of travel) + $137.81 
(time-related costs at upper bound wage) = $166.81.
    \93\ Calculations: $92.23 (total time-related cost at lower 
bound wage) + $30 (biometrics fee) = $122.23; $166.81 total (time-
related costs at upper bound wage) + $30 (biometrics fee) = $196.81.
---------------------------------------------------------------------------

    Table 19 shows the two population ranges for initial and renewal 
receipts for the two ranges of wage estimates for aliens on orders of 
supervision and the corresponding total cost to submit biometrics. 
Table 19(A) shows cost estimates for the lower and upper bound range of 
initial EAD receipts at the lower bound submission cost of $122.23. The 
total costs for Columns C and E provide the range of undiscounted costs 
for the lower bound. Similarly, Table 19(B) repeats the estimates for 
the lower and upper bound range of initial EAD receipts based on the 
upper bound submission cost of $196.81. Tables 19(C) and 19(D) repeat 
these estimates for the lower and upper bound ranges of renewal EAD 
receipts based on the lower and upper bound submission costs, 
respectively.
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BILLING CODE 9111-97-C
    As shown in Table 19, the cost to submit biometrics depends on the 
number of aliens temporarily released on orders of supervision who 
apply for an EAD and their wage rate. Over the 10-year period from FY 
2020 to FY 2029, the total cost to submit biometrics would range from 
$824,075 to $5,476,238.\94\ Annualized at 7 percent, the estimated 
costs to submit biometrics would range from $83,148 to $552,741 (Table 
22).
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    \94\ Calculations: $179,678 (10-year total initial lower bound 
costs) + $644,397 (10-year total renewal lower bound costs) = 
$824,075 (minimum 10-year total lower bound costs); $1,192,669 (10-
year total initial upper bound costs) + $4,283,570 (10-year total 
renewal upper bound costs) = $5,476,238 (maximum 10-year total upper 
bound costs).
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Cost of Forms
    For those aliens who remain eligible to be employment authorized, 
the proposed rule would increase the time burden on the population of 
applicants applying for employment authorization. This rule also 
proposes to add filing

[[Page 74237]]

procedures and evidentiary requirements for aliens on orders of 
supervision who are seeking an initial EAD or renewing an EAD. The 
proposed new requirements include submitting a Form I-765WS, to 
establish the alien's economic necessity for employment and, for 
renewal applicants only, the name of the alien's U.S. employer as 
listed in E-Verify and that employer's E-Verify Company Identification 
Number.
    Currently, DHS estimates the time burden for completing Form I-765 
is 4 hours and 30 minutes (4.5 hours).\95\ For aliens on orders of 
supervision who continue to be eligible and apply for employment 
authorization after this rule is final, this proposed rule would 
increase the time burden of Form I-765 by 30 minutes (0.5 hours) for a 
total of 5 hours.\96\ This change would increase the opportunity cost 
of time for each application by approximately $8.62 based on the 
effective minimum hourly wage and by about $18.78 based on the average 
wage for all occupations.\97\
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    \95\ See Instructions for Form I-765, December 26, 2019, 
available at https://www.uscis.gov/i-765 (last visited April 21, 
2020).
    \96\ The additional 30 minutes is an average estimate across all 
respondents completing Form I-765 to review additional language in 
the instructions and gather required supporting documentation.
    \97\ Calculations: 0.5 (burden hours) x $17.23 (effective 
minimum hourly wage for 1 hour of work) = $8.62 (rounded). 0.5 
(burden hours) x $37.55 (average wage for all occupations for 1 hour 
of work) = $18.78 (rounded).
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    This proposed rule would also make it a requirement to submit Form 
I-765WS for aliens applying for employment authorization under the 
(c)(18) category. Currently, proving the existence of economic 
necessity to be employed is listed as a discretionary factor for 
consideration, but it is not a requirement. In this proposed rule, DHS 
now makes this a mandatory requirement. DHS estimates the current time 
burden for completing Form I-765WS is 30 minutes (0.5 hours).\98\ For 
aliens temporarily released on orders of supervision who continue to be 
eligible and apply for employment authorization after the rule is 
final, the proposed rule would increase the opportunity cost of time 
for each applicant by $8.62 based on the effective minimum hourly wage 
and $18.78 based on the average wage for all occupations.\99\ Combining 
the new costs of the I-765 and I-765WS, the total per person increased 
time burden would add costs of $17.23 and $37.55 at the respective 
lower and upper bound wage rates.
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    \98\ See Instructions for Form I-765, December 26, 2019, 
available at https://www.uscis.gov/i-765 (last visited April 21, 
2020). Calculation: 0.5 hours (added time to file I-765) x $17.23 
(effective minimum hourly wage for 1 hour of work) = $8.62 
(rounded).
    \99\ Calculations: 0.5 hours (time to file I-765WS) x $17.23 
(effective minimum hourly wage for 1 hour of work) = $8.62 
(rounded). 0.5 hours (time to file I-765WS) x $37.55 (average wage 
for all occupations for 1 hour of work) = $18.78 (rounded).
---------------------------------------------------------------------------

    Table 20 shows the additional filing time burden-costs for Forms I-
765 and I-765WS for the two population ranges for initial and renewal 
receipts. Table 20(A) shows cost estimates for the lower and upper 
bound range of initial EAD receipts based on the lower bound additional 
time burden cost of $12.05. The total costs for Columns C and E provide 
the range of undiscounted costs for the lower bound wage. Similarly, 
Table 20(B) repeats the estimates for the lower and upper bound range 
of initial EAD receipts based on the upper bound additional time burden 
cost of $37.55. Tables 20(C) and 20(D) repeat these estimates for the 
lower and upper bound ranges of renewal EAD receipts based on the lower 
and upper bound wage time burden costs, respectively.
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BILLING CODE 9111-97-C
    As indicated in the table, the estimated total opportunity costs of 
time incurred as a result of increased time burden for completing the 
forms over the 10-year period from FY 2020 to FY 2029 would range from 
about $116,165 to $1,044,829.\100\ There would be no change in the 
estimated time burden for aliens temporarily released on orders of 
supervision for ICE Form I-220B. ICE completes Form I-220B and it is 
currently already submitted during the employment authorization 
application process.
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    \100\ Calculations: $25,328 (10-year total initial lower bound 
costs) + $90,837 (10-year total renewal lower bound costs) = 
$116,165 (minimum 10-year total lower bound costs); $227,553 (10-
year total initial upper bound costs) + $817,276 (10-year total 
renewal upper bound costs) = $1,044,829 (maximum 10-year total upper 
bound costs).
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Costs to Employers
    DHS anticipates that revising eligibility for aliens temporarily 
released on orders of supervision could lead to a loss of employment 
resulting in turnover costs for employers. Additionally, the proposed 
E-Verify requirement for renewal applicants would also result in costs 
to employers who are not currently enrolled in the E-Verify program and 
would seek to retain their (c)(18) worker(s). The population that could 
involve costs to employers involves specifically the renewal 
population, and the development of such impacts embodies two different 
provisions: (i) The provisions regarding eligibility in general, and 
(ii) the E-Verify requirement for aliens seeking to renew an EAD.
I. Unquantified Turnover Costs
    Some aliens who have final orders of removal but are temporarily 
released from custody on orders of supervision would eventually be out 
of the labor force even in the absence of this proposed rule. Since 
these aliens have been ordered removed, the federal government makes 
efforts to remove them from the United States on an ongoing basis 
regardless of employment authorization. For aliens who would no longer 
be eligible for employment authorization under this rule because they 
do not meet the proposed exception--DHS has not determined that the 
removal of such aliens is impracticable because ICE has not identified 
them as unable to obtain travel documents--this rule would affect the 
timing of when such alien workers would be removed from the labor 
force, which could vary. This proposed rule would result in employers 
incurring labor turnover costs earlier in comparison to the state of 
affairs in the absence of the proposed rule. Since the timing of when 
alien workers would be removed from the labor force is variable 
regardless of whether this proposed rule becomes final or not, DHS is 
unable to establish a baseline estimate of the labor turnover costs 
employers currently incur. In addition, DHS cannot quantify the labor 
turnover costs that employers would incur earlier than they would 
otherwise due to the proposed rule because there

[[Page 74240]]

is no way to know the timing for when aliens would be removed.
II. Employer Costs of E-Verify Requirement for Renewal Applicants
    For renewal applicants, employment authorization would only be 
granted to applicants who continue to meet the exception, demonstrate 
economic necessity, do not have subsequent criminal convictions, are 
employed by a U.S. employer who is a participant in good standing in 
the E-Verify program, and establish that they warrant a favorable 
exercise of discretion. The E-Verify program is a DHS web-based system 
that allows enrolled employers to confirm the identity and eligibility 
of their employees to work in the United States by electronically 
matching information provided by employees on the Employment 
Eligibility Verification (Form I-9) against records available to DHS 
and the Social Security Administration (SSA).\101\ DHS does not charge 
a fee for employers to participate in the E-Verify Program and create 
cases to confirm the identity and employment eligibility of newly hired 
employees. EAD renewal applications would be denied for those aliens 
who cannot establish that they are employed by an E-Verify employer and 
their $410 filing fee would not be refunded. DHS does not know the 
number of renewal applicants who would incur this cost once the rule is 
final.
---------------------------------------------------------------------------

    \101\ See E-Verify, available at https://www.e-verify.gov/ (last 
visited May 29, 2019).
---------------------------------------------------------------------------

    Although there is no fee to use E-Verify, this proposed requirement 
would result in costs to newly enrolling employers. Employers who would 
newly enroll in the E-Verify program would incur startup enrollment or 
program initiation costs as well as additional opportunity costs of 
time for ongoing annual training for the E-Verify program. DHS assumes 
that employers who are currently participating in the E-Verify program 
would not incur these costs since they previously incurred enrollment 
costs and would continue to participate in ongoing annual training 
regardless of this proposed rule.\102\ Additionally, DHS expects that 
only newly enrolled employers would incur new costs for verifying the 
identity and work authorization of all of their newly hired employees, 
including any new (c)(18) workers as a result of this proposed rule. 
For employers currently enrolled in E-Verify who choose to hire a 
(c)(18) alien worker, the proposed rule would not cause such employers 
to incur new costs since they already must use E-Verify for all newly 
hired employees as of the date they signed the E-Verify Memorandum of 
Understanding (MOU).\103\ Therefore, with or without the proposed rule, 
an employer already enrolled in the E-Verify program that chooses to 
hire a (c)(18) alien worker would incur the opportunity cost of time to 
verify any newly hired employees.
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    \102\ Employers already participating in E-Verify likely already 
complete ongoing annual training because they voluntarily chose to 
enroll or because of rules or regulations beyond the scope of this 
proposed rule. DHS anticipates that such employers would continue to 
use E-Verify regardless of their decision to hire (c)(18) workers or 
not.
    \103\ See About E-Verify, Questions and Answers, April 9, 2014 
https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0 (last visited April 16, 2020).
---------------------------------------------------------------------------

    Data show that some employers currently use E-Verify to confirm the 
identity and employment eligibility of (c)(18) alien workers. Further, 
the requirement to participate in the E-Verify program is not new as 
certain employers are required to enroll in the program as a condition 
of Federal contracting, or as a condition of business licensing under 
state legislation or other applicable law or regulation.\104\
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    \104\ Certain states (for example Alabama, Arizona, Mississippi, 
and South Carolina) and certain Federal contracts subject to the 
Federal Acquisition Regulation found at 48 CFR, Subpart 22.18 
require the use of E-Verify.
---------------------------------------------------------------------------

    To renew an EAD, the proposed rule would require that (c)(18) alien 
workers be employed by employers enrolled in E-Verify and in good 
standing. Therefore, the proposed rule would result in additional costs 
for employers that hire (c)(18) alien workers only if such employers 
are not currently enrolled in the E-Verify program and who choose to 
retain their (c)(18) workers.
    For employers that have hired or intend to hire (c)(18) alien 
workers but are not enrolled in the E-Verify program, such employers 
would incur opportunity costs of time to enroll. Participating in the 
E-Verify program and remaining in good standing requires employers to 
enroll in the program online,\105\ electronically sign the associated 
MOU with DHS that sets the terms and conditions of participation in the 
program, and create E-Verify cases for all newly hired employees. The 
MOU requires employers to abide by lawful hiring procedures and to 
ensure that no employee will be unfairly discriminated against as a 
result of E-Verify.\106\ If an employer violates the terms of this 
agreement, it is grounds for immediate termination from the 
program.\107\ Additionally, employers are required to designate and 
register at least one person that serves as an E-Verify administrator 
on their behalf.
---------------------------------------------------------------------------

    \105\ See The Enrollment Process at https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process (last visited 
February 12, 2019).
    \106\ An employer that discriminates in its use of E-Verify 
based on an individual's citizenship status or national origin may 
also violate the INA's anti-discrimination provision, at 8 U.S.C. 
1324b.
    \107\ See USCIS, The E-Verify Memorandum of Understanding for 
Employers, available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf.
---------------------------------------------------------------------------

    For this analysis, DHS assumes that each employer participating in 
the E-Verify program designates one HR specialist to manage the program 
on its behalf. Based on the most recent Paperwork Reduction Act (PRA) 
Information Collection Package for E-Verify, DHS estimates the time 
burden for an HR specialist to undertake the tasks associated with the 
E-Verify program. DHS estimates the time burden for an HR specialist to 
complete the enrollment process is 2 hours 16 minutes (2.26 hours), on 
average, to provide basic company information, review and sign the MOU, 
take a new user training, and review the user guides.\108\ Once 
enrolled in the E-Verify program, DHS estimates the time burden is 1 
hour to complete ongoing annual training on new features and system 
updates.\109\
---------------------------------------------------------------------------

    \108\ The USCIS Office of Policy and Strategy, PRA Compliance 
Branch estimates the average time burdens. See PRA E-Verify Program 
(OMB control number 1615-0092), May 24, 2016. The PRA Supporting 
Statement can be found under Question 12 at https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last visited 
May 29, 2019).
    \109\ Id.
---------------------------------------------------------------------------

    Once enrolled in the E-Verify program, the employer is responsible 
for ensuring that the employment verification process adheres to the 
requirements of the MOU and the employer verifies that all newly hired 
employees are employment authorized. After completing the Form I-9, the 
employer must enter the newly hired employee's information in E-Verify 
where it is checked against records available to SSA and DHS. After 
checking an employee's information against these records, E-Verify 
returns the case processing results, which could either automatically 
confirm the employee as employment authorized or return a tentative 
non-confirmation (TNC). Receiving a TNC does not mean an employee is 
not authorized to work in the United States; rather, it indicates there 
is an initial system mismatch between the information the employer 
entered in E-Verify from the employee's Form I-9 and the records 
available to DHS or SSA. Employees receiving a TNC have the option to 
contest (take action) or not contest (not take action)

[[Page 74241]]

to resolve the DHS and/or SSA TNC case result. E-Verify requires 
employers to promptly inform the employee about the TNC and provide 
instructions for contesting it. The E-Verify website also provides 
detailed information about contesting the TNC.\110\
---------------------------------------------------------------------------

    \110\ See the following for more detailed information https://www.e-verify.gov/employees/tentative-nonconfirmation-overview/how-to-correct-a-tentative-nonconfirmation (last visited May 29, 2019).
---------------------------------------------------------------------------

    In the absence of specific population data on which entities would 
continue to hire (c)(18) alien workers, it is only possible to 
calculate an estimated average unit cost for an employer not currently 
participating in E-Verify to hire one (c)(18) renewal alien worker. In 
this analysis, DHS uses an hourly compensation rate for estimating the 
opportunity cost of time for an HR specialist. DHS uses this occupation 
as a proxy for those who might prepare and complete the verification 
for an employer. DHS notes that not all employers may have an HR 
specialist, but rather some equivalent occupation may prepare and 
complete the verification and create the E-Verify case.
    According to BLS data, the average hourly wage rate for HR 
specialists is $32.58.\111\ DHS estimates the hourly compensation rates 
by adjusting the average hourly wage rates by a benefit-to-wage 
multiplier to account for the full cost of benefits such as paid leave, 
insurance, and retirement. Based on the most recent report by the BLS 
on the average employers' costs for employee compensation for all 
civilian workers in major occupational groups and industries, DHS 
estimates that the benefits-to-wage multiplier is 1.46.\112\ Therefore, 
DHS calculates an average hourly compensation rate of $47.57 for HR 
specialists.\113\ Applying this average hourly compensation rate to the 
estimated time burden of 2.26 hours for the enrollment process, DHS 
estimates an average opportunity cost of time for a new employer to 
enroll in E-Verify is $107.51.\114\ DHS assumes the estimated 
opportunity cost of time to enroll in the E-Verify program is a one-
time cost to employers. In addition, DHS estimates the opportunity cost 
of time associated with 1 hour of ongoing annual training for newly-
enrolled entities would be $47.57 annually in the years following 
enrollment.
---------------------------------------------------------------------------

    \111\ See U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, May 2019, Human Resources 
Specialist (SOC #13-1071): https://www.bls.gov/oes/2019/may/oes131071.htm (last visited May 7, 2020).
    \112\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
= $37.10/$25.47 = 1.457 = 1.46 (rounded). See Economic News Release, 
``Employer Cost for Employee Compensation-- December 2019,'' (March 
2020), U.S. Department of Labor, BLS, Table 1. Employer costs per 
hour worked for employee compensation and costs as a percent of 
total compensation: Civilian workers, by major occupational and 
industry group. March 19, 2020, available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (last visited March 24, 
2020).
    \113\ Hourly compensation of $47.57 = $32.58 average hourly wage 
rate for HR specialists x 1.46 benefits-to-wage multiplier.
    \114\ Calculation: 2.26 hours for the enrollment process x 
$47.57 total compensation wage rate for an HR specialist = $107.51.
---------------------------------------------------------------------------

    Newly-enrolled employers would also incur opportunity costs of time 
to enter employee information into the E-Verify system to confirm their 
identity and work authorization. DHS estimates the time burden for an 
HR specialist to submit a case in E-Verify is 7.74 minutes (or 0.129 
hours).\115\ Therefore, DHS estimates the opportunity cost of time 
would be approximately $6.14 per case.\116\
---------------------------------------------------------------------------

    \115\ The USCIS Office of Policy and Strategy, PRA Compliance 
Branch estimates the average time burdens. See Paperwork Reduction 
Act (PRA) E-Verify Program (OMB control number 1615-0092), May 24, 
2016. The PRA Supporting Statement can be found under Question 12 at 
https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last 
visited May 29, 2019).
    \116\ Calculation: 0.129 hours to submit a query * $47.57 total 
compensation wage rate for an HR specialist = $6.14.
---------------------------------------------------------------------------

    DHS estimates the total first year cost for a new employer to 
enroll in E-Verify and create a single E-Verify case in the E-Verify 
system would be approximately $113.65.\117\ In subsequent years, DHS 
estimates newly-enrolled employers would incur costs of $53.71, at 
minimum, to maintain their account and create one new E-Verify case for 
their (c)(18) worker.\118\ DHS recognizes that the actual cost to 
newly-enrolled employers of using E-Verify would be higher since case 
submissions would also include all newly hired employees, not just 
(c)(18) workers. However, since DHS cannot predict how many employees 
each employer would hire in the future, DHS cannot estimate how many 
additional E-Verify cases an employer may expect to create. Employers 
already enrolled in the E-Verify program who choose to hire (c)(18) 
workers in subsequent years would incur costs even in the absence of 
this proposed rule.
---------------------------------------------------------------------------

    \117\ Calculation: $107.51 opportunity cost for a new entity to 
enroll in E-Verify + $6.14 cost to submit a query into E-Verify = 
$113.65.
    \118\ Calculation: $47.57 one hour of annual training + $6.14 
cost to submit a query into E-Verify = $53.71. E-Verify has a Work 
Authorization Docs Expiring case alert that notifies employers that 
an employee's EAD or Arrival-Departure Record (Form I-94) document 
is expiring. The alert is a reminder for the employer to reverify 
the employee. See About E-Verify Questions and Answers, Creating and 
Managing Cases, page 2 (04/30/2018) at https://www.e-verify.gov/about-e-verify/questions-and-answers (last viewed Jul. 15, 2020).
---------------------------------------------------------------------------

    Employers that are not participating in E-Verify face the binary 
choice of participating in or not participating in the program. If the 
employer who had hired a (c)(18) alien worker does not participate, the 
employer faces the potential for labor turnover costs. If the employer 
does participate, the employer incurs the cost of enrolling and 
participating in the program and implementing the program requirements. 
On one hand, since the EADs last only a year, there might be some 
disincentive not to participate in E-Verify. However, as discussed in 
the population section, DHS cannot make reliable estimates of the 
number of employers that would enroll and participate in E-Verify, and 
as such, cannot estimate total costs germane to this implementation.
III. Turnover Costs to Employers Who Currently Hire (c)(18) EAD Holders
    In order to properly account for costs involving employers who have 
hired aliens temporarily released on orders of supervision who are EAD 
holders, DHS introduces the costs applicable to discuss labor turnover 
and E-Verify in separate segments.
    DHS anticipates this proposed rule would impose labor-related 
turnover costs on U.S. employers who employ (c)(18) alien workers who 
would remain eligible under this rule but are not enrolled in E-Verify 
and opt not to enroll. Employers would incur labor turnover costs 
because these alien workers would remain eligible for an initial EAD 
under this rule but would not be eligible for a renewal EAD since they 
would be unable to establish that they are employed by an E-Verify 
employer. As a result, alien workers would no longer be able to work 
and presumably employers would need to find a replacement worker. For 
aliens who would remain eligible for an EAD under this rule, the 
duration of time to remove aliens on orders of supervision from the 
U.S. would likely be longer than average as DHS has determined that 
removal for these aliens is impracticable because all countries from 
which DHS has requested travel documents have affirmatively declined to 
issue such documents. Therefore, employers who do not use or are 
enrolled in E-Verify would incur turnover costs in cases where their 
(c)(18) alien workers would remain eligible for an EAD under this rule. 
However, U.S. employers who are not enrolled in E-Verify could avoid 
turnover costs by choosing to enroll in the program. If an employer 
chooses to

[[Page 74242]]

enroll in E-Verify, the employer would instead incur the associated 
costs to enroll in the system, submit cases (for all newly hired 
employees, not just (c)(18) workers), and maintain their account.
    Employee turnover may cause employers to incur various direct and 
indirect turnover costs. Direct turnover cost employers could incur 
include those that involve separation and replacement costs. Separation 
costs include exit interviews, severance pay, and assigning other 
employees to temporarily cover the departing employee's duties and 
functions, which may require overtime or temporary staffing. 
Replacement costs typically include those related to advertising 
positions, search and agency fees, screening applicants, interviewing, 
background verification, employment testing, hiring bonuses, and 
possible travel and relocation costs. Once hired, employers may incur 
additional costs for training, orientation, and assessments. 
Additionally, other direct costs may include loss of productivity and 
possible reduced profitability due to operational and production 
disruptions. Moreover, employers may incur indirect costs, including 
loss of institutional knowledge, networking, and impacts to morale and 
interpersonal work relationships. These indirect costs are more 
difficult to measure.
    DHS has reviewed recent research and literature on turnover costs. 
While peer-reviewed research on turnover costs is not extensive, there 
are several studies available which are cited repeatedly across various 
reports focusing on specific locations and occupations, and measure 
turnover costs in different ways. For example, a 2012 report published 
by the Center for American Progress (``2012 CAP Survey'') reviewed 
several dozen studies that considered both direct and indirect 
costs.\119\ This survey found that turnover costs per employee ranged 
from 10 to 30 percent of the salary for most salaried workers with an 
average mid-point of about 20 percent of the worker's salary in total 
labor turnover costs.
---------------------------------------------------------------------------

    \119\ See ``There Are Significant Business Costs to Replacing 
Employees,'' By Heather Boushey and Sarah Jane Glynn (2012), Center 
for American Progress, at: https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/ (last visited Apr. 15, 2020).
---------------------------------------------------------------------------

    In the absence of specific data on which employers hire (c)(18) 
alien workers and use, or would enroll in, E-Verify, it is only 
possible to calculate an estimated range of average per employee 
turnover costs an employer not currently participating in E-Verify 
could incur. In order to estimate labor turnover costs, DHS uses 
estimated employee annual earnings of $35,838 based on the effective 
minimum wage as a lower bound and $78,106 based on the average wage 
developed previously in this analysis (see ``Proposal Regarding EAD 
Eligibility'' section) and an upper bound. DHS multiplied each of these 
estimated employee annual earnings by 20 percent in accordance with the 
2012 CAP Survey. Using annual earnings based on the effective minimum 
wage (lower bound), DHS estimates labor turnover costs would be 
approximately $7,168 per worker and using the annual earnings based on 
the average wage (upper bound), DHS estimates labor turnover costs 
would be approximately $15,621 per worker.\120\ Turnover costs would be 
higher if a U.S. employer that does not use or enroll in E-Verify 
employs more than one (c)(18) alien worker who would remain eligible 
under this rule. DHS recognizes that turnover costs would occur in the 
year an EAD expires and, depending on the effective date of this rule 
should it become finalized, employers who incur turnover costs may 
incur them in up to two consecutive fiscal years.
---------------------------------------------------------------------------

    \120\ Calculations: $35,838 x 20% = $7,168; $78,106 x 20% = 
$15,621.
---------------------------------------------------------------------------

    DHS is unable to predict how many employers would actually 
participate in E-Verify in order to retain their (c)(18) alien workers 
or the total number of employment authorizations they would confirm 
through E-Verify should they choose to participate. DHS assumes that 
employers would make a cost-benefit decision between incurring labor 
turnover costs and incurring the current and future costs to enroll and 
participate in E-Verify. DHS recognizes that an employer that enrolls 
and participates in E-Verify would confirm employment authorization for 
all new hires, not only their (c)(18) alien workers. Unlike the 
development of the costs germane to forgone earnings, in which DHS 
could at least deduce a range for the population based on some limited 
data, doing so here would be completely speculative, and we do not 
endeavor to rely on a range here.
I. Government Transfers
    This proposed rule could reduce taxes paid to the federal 
government (a transfer payment) in the short term. During the period of 
vacancy for a job formerly held by the (c)(18) alien worker, the 
federal government would not be collecting taxes.
    In addition, in instances where an employer cannot hire replacement 
labor for a position an alien on an order of supervision had or would 
have filled, this proposed rule may result in a reduction in taxes paid 
to the federal government. It is difficult to quantify income tax 
losses because individual tax situations vary widely.\121\ However, DHS 
estimates the potential reduction in tax revenue generated through 
employment tax programs, namely Medicare and Social Security, which 
have a combined tax rate of 7.65 percent (6.2 percent and 1.45 percent, 
respectively).\122\ DHS notes that the total estimated reduction in tax 
transfer payments from employees and employers to Medicare and Social 
Security is 15.3 percent since both the employee and employer would not 
pay their respective portions of Medicare and Social Security taxes 
when a position remains unfilled by an alien on an order of supervision 
who held or would have filled the position.\123\
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    \121\ More than 44 percent of workers pay no federal income tax 
(Sept. 16, 2018) available at https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
    \122\ The various employment taxes are discussed in more detail 
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E, 
Employer's Tax Guide for specific information on employment tax 
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf. See More than 44 
percent of Americans pay no federal income tax (Sep. 16, 2018) 
available at: https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16. (last visited Sep. 16, 2018)
    \123\ Calculation: (6.2 percent Social Security + 1.45 percent 
Medicare) x 2 employee and employer losses = 15.3 percent total 
estimated tax loss to government.
---------------------------------------------------------------------------

    To estimate the range of employment tax losses, we take the 
estimated lost earnings for the range of initial and renewal projected 
filers at the prevailing and average wage rates from Table 18, columns 
G and H, and multiply each year by 15.3 percent. These calculations are 
shown in Table 21.
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[[Page 74244]]


[GRAPHIC] [TIFF OMITTED] TP19NO20.096

    Lost earnings, which DHS estimates could range between 
$6,038,201,268 and $14,716,520,096 \124\ over the 10-year period from 
FY 2020 to FY 2029, would result in corresponding employment tax losses 
ranging between $923,844,794 and $2,251,612,274.\125\ Annualized at 7 
percent, employment tax losses would range from approximately 
$93,947,687 to $228,789,887 (Table 22). Again, depending on the 
circumstances of the employee, there could be additional federal income 
tax losses not estimated here. There may also be state and local income 
tax losses that would vary according to the jurisdiction, but which DHS 
is unable to quantify. It is noted that the potential decrease in tax 
transfers only applies to the compensation impacts, not to labor 
turnover costs, costs associated with the forms' burdens, or 
implementation and usage of E-Verify.
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    \124\ Calculations (data from Table 18): $1,388,614,986 (10-year 
total initial upper bound costs) + $4,649,586,282 (10-year total 
renewal upper bound costs) = $6,038,201,268 (minimum 10-year total 
lower bound costs); $3,384,879,722 (10-year total initial upper 
bound costs) + $11,331,540,374 (10-year total renewal upper bound 
costs) = $14,716,420,096 (maximum 10-year total upper bound costs).
    \125\ Calculations: $212,458,093 (10-year total initial lower 
bound costs) + $711,386,701 (10-year total renewal lower bound 
costs) = $923,844,794 (minimum 10-year total lower bound costs); 
$517,886,597 (10-year total initial upper bound costs) + 
$1,733,725,677 (10-year total renewal upper bound costs) = 
$2,251,612,274 (maximum 10-year total upper bound costs).

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[[Page 74245]]

II. Total Costs of the Rule
    In the previous sections we presented monetized estimates of the 
impacts of the proposed rule germane to lost labor earnings, biometrics 
submission, increased time burdens for completing forms, and labor 
turnover costs for renewals. We estimated the per employer cost 
associated with enrolling in and participating in the E-Verify program, 
but not the total costs for businesses. In the development of costs 
associated with lost labor earnings, our inability to refine the 
population that could be impacted drove reliance on a lower and upper 
bound.
    The total impacts are aggregated by summing the total initial and 
renewal impacts from Tables 18 through 21 in terms of the maximum and 
minimum estimates. Therefore, Table 22 shows the range of estimated 
monetized costs of the proposed rule, where Table 22(A) presents the 
maximum estimates, and Table 22(B) presents the minimum estimates. For 
each sub-table the ten-year totals are provided in undiscounted 10-year 
total values, as well as the present value costs and annualized costs 
discounted at 7 percent and 3 percent.

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    As table 22 shows, the projected 10-year monetized undiscounted 
costs of the proposed rule for the period fiscal year 2020 to 2029 
could be as high as about $14.72 billion with a minimum cost estimate 
of $6.04 billion under the assumptions relied on.\126\ The majority of 
the costs of this rule would result from lost labor earnings, if 
companies are unable to find reasonable labor substitutes for the 
position the aliens temporarily released on orders of supervision would 
have filled. DHS notes there are unquantified costs not reflected in 
the estimates above.
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    \126\ Calculations: $6,038,201,268 (lost labor earnings costs) + 
$824,075 (biometrics costs) + $116,165 (time burden to complete 
forms costs) = $6,039,141,507 minimum undiscounted 10-year total; 
$14,716,420,096 (lost labor earnings costs) + $5,476,238 (biometrics 
costs) + $1,044,829 (time burden to complete forms costs) = 
$14,722,941,163 maximum undiscounted 10-year total.
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Benefits
    The benefits potentially realized by the proposed rule are both 
qualitative and quantitative. DHS has provided estimates of monetized 
benefits, where possible. DHS estimates that U.S. workers could have a 
better chance of obtaining jobs that some (c)(18) alien workers 
currently hold, as the proposed rule would reduce employment 
authorization eligibility for the (c)(18) alien worker population.
    In addition, the restriction on the ability to obtain work 
authorization may increase incentives for aliens with final orders of 
removal to depart the United States, which could decrease the amount of 
time aliens are in this status and could save government resources 
expended while aliens are temporarily released on orders of supervision 
and pending repatriation. ICE oversees the monitoring and tracking of 
aliens on orders of supervision as well as effectuates their removal 
from the United States.\127\ Managing aliens temporarily released on 
orders of supervision consumes DHS resources. Specifically, ICE must 
devote resources to track and monitor the status of these aliens. This 
includes conducting regular check-ins to ensure compliance with 
conditions of release. These cases absorb scarce enforcement resources 
that could be diverted to, among other things, identifying and 
detaining criminal aliens. If fewer aliens with final orders of removal 
on orders of supervision remain in the United States for an extended 
period of time because this rule increases the incentives for them to 
depart, then ICE is likely to spend fewer resources on monitoring and 
tracking aliens on orders of supervision. Monetizing this benefit is 
not possible at this time. Although the federal government makes 
efforts to remove these aliens from the United States on an ongoing 
basis regardless of employment authorization, there is no way to know 
the timing of when aliens would be removed, if an alien would be 
motivated to self-deport or, ultimately, who would execute the removal.
---------------------------------------------------------------------------

    \127\ See Immigration Enforcement, Removal https://www.ice.gov/removal and Enforcement and Removal Operations, ERO Overview https://www.ice.gov/ero.
---------------------------------------------------------------------------

    The proposal to revise the (a)(10) employment authorization 
category could provide aliens who are granted CAT deferral of removal 
with monetary benefits that can be quantified. Currently, this 
population is regulated to apply for an EAD under the (c)(18) category. 
In practice, DHS acknowledges that some aliens who are granted CAT 
deferral of removal have applied under the (a)(10) Form I-765 category 
and adjudication of these applications has been inconsistent. This 
proposed revision would thus reduce confusion for aliens who are 
granted CAT deferral of removal applying for an EAD and would lead to 
consistent Form I-765 adjudication for this population.
    For those who currently apply under the (c)(18) category, Form I-
765 must be accompanied by the filing fee and a copy of the DOJ 
Executive Office for Immigration Review (EOIR) immigration judge's 
order of removal. As stated in the Form I-765 instructions, three 
additional factors may also be considered under the (c)(18) category, 
including the existence of a dependent spouse and/or children in the 
United States who rely on the alien for support; existence of economic 
necessity to be employed; and the anticipated length of time before the 
alien can be removed from the United States. If supporting evidence is 
requested, DHS recognizes that there would be associated opportunity 
costs of time for those aliens.
    Aliens under the (a)(10) category are not required to apply to DHS 
to obtain employment authorization before they can begin work. However, 
(a)(10) aliens are required to apply (i.e., submit Form I-765) in order 
to receive a physical EAD card if they want a document evidencing their 
employment authorization pursuant to their grant of withholding or 
deferral. Under the (a)(10) category, aliens file Form I-765 with a 
copy of the EOIR immigration judge's signed order granting withholding 
of removal. There are no additional factors for consideration. DHS is 
not able to determine the number of aliens who are granted CAT deferral 
of removal who apply under the (c)(18) category, submit evidence for 
the additional factors, or who may opt to not apply for a physical EAD 
card. Therefore, since DHS cannot separate out the number of applicants 
who may benefit from this proposed provision, we consider a ``best-
case'' scenario. In the best-case scenario, none of the 147 (the 5-year 
average number of cases, Table 16) aliens who are granted CAT deferral 
of removal would apply for a physical EAD card after the effective date 
of this rule since they would not need to obtain an EAD in order to 
begin work. Under this scenario, benefits would accrue from not paying 
filing fees and not spending time filing Form I-765. The filing fee for 
aliens applying for employment authorization is $550.\128\ DHS 
estimates this population could save a maximum $80,850 in filing fees 
in the first year of the rule becoming effective.\129\ The other 
benefit would be accrued in the form of opportunity costs since these 
aliens would not spend time preparing and submitting Form I-765 and any 
other evidence that would have been required under the (c)(18) 
considerations. DHS is able to quantify the savings that would result 
from not submitting Form I-765, which has an estimated time burden of 4 
hours and 30 minutes.\130\ Using the lower and upper bound wage rates, 
the opportunity cost of time savings would range from about $77.54 to 
$168.98 per alien in the first year.\131\ For the 147 aliens who are 
granted CAT deferral of removal, the opportunity cost of time savings 
would range from $11,398 to $24,840 under this scenario.\132\ Per 
alien, benefits for this population would range from approximately 
$627.54 to $718.98 per alien, with a total benefit ranging from $92,248 
to $105,690 annually.\133\ Additional savings could

[[Page 74248]]

also be accrued in the form of opportunity costs if applicants would 
have spent time submitting evidence under any of the (c)(18) 
considerations.
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    \128\ USCIS was previously authorized to collect a $410 Form I-
765 filing fee. However, the recently promulgated fee rule updated 
the fee for Form I-765 to $550. The final fee rule is expected to 
take effect on October 3, 2020. See U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration 
Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020).
    \129\ $550 (filing fee to apply for an initial EAD under the 
(c)(18) category) x 147 (average number of cases granted CAT 
deferral of removal) = $80,850.
    \130\ See Instructions for Form I-765 (05/31/2020) at https://www.uscis.gov/i-765.
    \131\ Calculations: 4.5 hours (time burden for Form I-765) x 
$17.23 (one hour of work at prevailing wage) = $77.54; 4.5 hours 
(time burden for Form I-765) x $37.55 (one hour of work at average 
wage for all occupations) = $168.98.
    \132\ Calculations: $77.54 x 147 (the average number of cases 
granted CAT deferral of removal) = $11,398; $168.98 x 147 (the 
average number of cases granted CAT deferral of removal) = $24,840.
    \133\ Calculation: $77.54 (lower bound opportunity cost of time) 
+ $550 (filing fee) = $627.54; $168.98 (upper bound opportunity cost 
of time) + $550 (filing fee) = $718.98; $627.54 x 147 = $92,248 
(lower bound total benefit); $718.98 x 147 = $105,690 (upper bound 
total benefit).
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    The scenario presented here is an extreme to best estimate the 
maximum savings of this proposed provision. It is likely that some 
aliens who are granted CAT deferral of removal would continue to submit 
Form I-765 and pay the $550 filing fee in order to obtain a physical 
EAD card. Therefore, the overall benefit of this proposed provision is 
presented using a range from $0 to $105,690 annually.
    DHS welcomes any data or public comments on the benefits of 
removing the eligibility of employment authorizations to certain 
(c)(18) workers. DHS is particularly interested in public comments 
about the benefits to U.S. workers of removing the eligibility of 
employment authorization for (c)(18) workers. DHS is also interested in 
receiving comments on the increased employment opportunities for U.S. 
workers due to this rule. DHS welcomes any overall public feedback or 
data that could assist DHS in quantifying the benefits of the proposed 
rule.
Labor Market Overview
    As discussed in the population section of this analysis, USCIS 
anticipates approving somewhere between 17,077 and 22,090 Form I-765 
applications annually from aliens with final orders of removal in the 
absence of this proposed rule.\134\ The U.S. labor force consists of a 
total of 160,143,000 workers, according to recent data (September 
2020).\135\ Therefore, the maximum population affected by this proposed 
rule (about 22,090) represents 0.01 percent of the U.S. labor force, 
suggesting that the number of potential workers no longer eligible for 
an EAD make up a very small percentage of the U.S. labor market.\136\
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    \134\ Calculations: 4,241 (projected initial approvals FY 2029) 
+ 12,836 (projected renewal approvals FY 2029) = 17,077 minimum 
projected annual approvals; 4,728 (projected initial approvals FY 
2020) + 17,362 (projected renewal approvals FY 2020) = 22,090 
maximum projected annual approvals.
    \135\ The BLS labor force data are found in Table A-1. 
Employment status of the civilian population by sex and age, 
seasonally adjusted, from the Current Population Survey October 2020 
News Release: https://www.bls.gov/news.release/archives/empsit_10022020.pdf. (last visited October 8, 2020).
    \136\ Calculation: (22,090 maximum projected annual (c)(18) 
alien worker approvals/160,143,000 workers) *100 = 0.01 percent 
(rounded).
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B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, or governmental 
jurisdictions with populations of less than 50,000.\137\
---------------------------------------------------------------------------

    \137\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    This proposed rule would eliminate eligibility for employment 
authorization for aliens who have final orders of removal and are 
temporarily released on orders of supervision except in cases where the 
alien meets the exception under this proposed rule (i.e. removal is 
impracticable because all countries from whom DHS requested travel 
documents have affirmatively declined to issue such documents). DHS has 
estimated that the rule would cover an upper bound population of about 
22,090 aliens. As previously explained, the provision being proposed 
may result in forgone labor earnings for aliens temporarily released on 
order of supervision. This rule directly regulates and impacts aliens 
temporarily released on orders of supervision and individuals are not 
considered a small entity under the Regulatory Flexibility Act. Some 
entities (including employers) could be indirectly impacted by labor 
turnover costs or the costs of implementing and utilizing E-Verify by 
this proposed rule because they employ an affected alien. DHS has 
prepared an initial regulatory flexibility analysis (IRFA) to accompany 
this proposed rule.
i. A Description of the Reasons Why the Action by the Agency is Being 
Considered
    DHS has determined that the current employment authorization 
regulations governing discretionary employment authorization do not 
adequately reflect DHS's enforcement mission and priorities. As 
discussed more fully in the preamble, DHS's enforcement goals are not 
consistent with allowing aliens to work when they have an order of 
removal from the United States.
    DHS is proposing through this rulemaking to align its discretionary 
authority to grant employment authorization with its immigration 
enforcement mission and priorities. Enforcement is essential to the 
integrity of the immigration system.
ii. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    DHS's authority to detain and release aliens ordered removed from 
custody on orders of supervision and to grant employment authorization 
is found in several statutory provisions. Section 102 of the Homeland 
Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 
112 and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary 
with the administration and enforcement of the immigration and 
naturalization laws of the United States.\138\ In addition to 
establishing the Secretary's general authority to administer and 
enforce immigration laws, section 103 of the INA, 8 U.S.C. 1103, 
enumerates various related authorities including the Secretary's 
authority to establish regulations as are necessary for carrying out 
his authority. Section 241 of the INA, 8 U.S.C. 1231, governs the 
detention, release, and removal of aliens after they have received an 
administratively final order of removal. Section 274A of the INA, 8 
U.S.C. 1324a, governs employment of aliens who are authorized to be 
employed by statute or in the discretion of the Secretary and the 
requirements U.S. employers must follow to verify the identity and 
employment authorization of their employees. The authority to establish 
and operate E-Verify is found in sections 401-405 of IIRIRA, Public Law 
104-208, 110 Stat. 3009-546. The Secretary proposes the changes in this 
rule under these authorities.
---------------------------------------------------------------------------

    \138\ Public Law 104-208, div. C, at secs. 401-405.
---------------------------------------------------------------------------

iii. A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    This rule directly regulates and impacts aliens temporarily 
released on orders of supervision and individuals are not considered a 
small entity under the Regulatory Flexibility Act. Since some small 
entities may be indirectly impacted by this proposed rule by employing 
an affected alien, DHS has developed this IRFA to evaluate the 
potential impact on small entities. Small entities could incur costs 
due to the proposed rule if they employ EAD holders who are affected by 
the new requirements of the proposed rule. However, DHS does not 
currently require information on the employer or employment status of 
the EAD holder and thus is unable to determine how many entities could 
be impacted by the

[[Page 74249]]

proposed rule or whether the entities impacted would be considered 
small entities. This is because these EADs are open market EADs,\139\ 
and therefore DHS does not currently collect information on the 
employer or the employment status of the EAD holder. This proposed rule 
may cause some existing EAD holders to be ineligible to renew their 
EADs. In such cases, small entities may incur opportunity costs 
associated with having to choose the next best alternative to 
immediately filling a job an EAD holder would have filled in situations 
where eligibility for the EAD is not met. If entities cannot find 
reasonable substitutes for the labor the aliens temporarily released on 
orders of supervision would have provided, removing EAD eligibility for 
these aliens would result primarily in costs to those entities through 
lost productivity and lost profits. DHS expects that this type of 
turnover would be incurred in the first two years after the effective 
date of this rule.\140\ Small entities, that do not currently 
participate in E-Verify would incur costs to implement and use the 
program in order to retain aliens temporarily released on orders of 
supervision in order for the alien to be eligible for a renewal EAD 
under this rule. DHS estimates the total first year cost for a new 
entity to enroll in the E-Verify program and create a single E-Verify 
case would be approximately $113.65. In subsequent years, DHS estimates 
newly enrolled entities would incur a minimal annual cost of $53.71 to 
maintain their account and create one new case for their (c)(18) 
worker. DHS recognizes that the actual cost to newly-enrolled entities 
of using E-Verify would be higher since case submissions would also 
include all newly hired employees, not just (c)(18) workers. However, 
since DHS cannot predict how many employees each entity would hire in 
the future, DHS cannot estimate how many additional E-Verify cases an 
entity may expect to create. Entities already enrolled in the E-Verify 
program who choose to hire (c)(18) workers in subsequent years would 
incur costs even in the absence of this proposed rule.
---------------------------------------------------------------------------

    \139\ Open market EADs allow aliens to work in any occupation or 
industry. The alien is not required to work for a specific employer 
or in any specific industry or occupation, and the U.S. employer is 
not required to test the labor market to ensure that there are no 
U.S. workers available and that the hiring of the (c)(18) alien will 
not adversely affect the wages and working conditions for similarly 
situated U.S. workers.
    \140\ We do not attribute turnover costs from ineligibility in 
other years because we operate under the assumption that if an 
initial EAD is approved, then the renewal would also be approved 
under the proposed criteria of this rule. DHS recognizes that in 
some cases, a renewal filing could be denied even in the wake of an 
approved initial EAD in future years, but the number of instances 
this would occur is unknown. Estimation of these cases would be 
speculative at this time.
---------------------------------------------------------------------------

    Small entities that are not participating in E-Verify face the 
binary choice of participating in or not participating in the program. 
If an entity who had hired a (c)(18) alien worker does not participate, 
the entity faces the potential for labor turnover costs. If the entity 
does participate, the entity incurs the cost of enrolling and 
participating in the E-Verify program and implementing the program 
requirements. On one hand, since the EADs last only a year, there might 
be some disincentive not to participate in E-Verify. However, as 
discussed in the population section, DHS cannot make reliable estimates 
of the number of entities that would enroll and participate in E-
Verify, and as such, cannot estimate total costs germane to this 
implementation.
    If a small entity who employs (c)(18) alien workers who would 
remain eligible under this rule is not enrolled in E-Verify and opts 
not to enroll, the entity would incur labor related turnover costs. 
Entities would incur labor turnover costs because these alien workers 
would remain eligible for an initial EAD under this rule, but would not 
be eligible for a renewal EAD since they would be unable to establish 
that they are employed by an entity enrolled in E-Verify. As a result, 
alien workers would no longer be able to work and presumably entities 
would need to find a replacement worker. For aliens who would remain 
eligible for an EAD under this rule, the duration of time to remove 
aliens on orders of supervision from the U.S. would likely be longer 
than average as DHS has determined that removal for these aliens is 
impracticable because all countries from which DHS has requested travel 
documents have affirmatively declined to issue such documents. 
Therefore, entities who do not use or are enrolled in E-Verify would 
incur turnover costs in cases where their (c)(18) alien workers would 
remain eligible for an EAD under this rule.
    Using annual earnings based on the effective minimum wage (lower 
bound), DHS estimates labor turnover costs would be approximately 
$7,168 per worker and using the annual earnings based on the average 
wage (upper bound), DHS estimates labor turnover costs would be 
approximately $15,621 per worker.\141\ Turnover costs would be higher 
if a U.S. employer that does not use or enroll in E-Verify employ more 
than one (c)(18) alien worker who would remain eligible under this 
rule. DHS recognizes that turnover costs would occur in the year an EAD 
expires and, depending on the effective date of this rule should it 
become finalized, employers who incur turnover costs may incur them in 
up to two consecutive fiscal years.
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    \141\ Calculations: $35,838 x 20% = $7,168; $78,106 x 20% = 
$15,621.
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    DHS is unable to predict how many entities would actually 
participate in E-Verify in order to retain their (c)(18) alien workers 
or the total number of employment authorizations they would confirm 
through E-Verify should they choose to participate. DHS assumes that 
entities would make a cost-benefit decision between incurring labor 
turnover costs and incurring the current and future costs to enroll and 
participate in E-Verify. DHS recognizes that an entity that enrolls and 
participates in E-Verify would confirm employment authorization for all 
new hires, not only their (c)(18) alien workers.
    DHS has no way to predict how many small entities would adopt the 
E-Verify system and how many workers they would vet. Since this rule 
proposes to eliminate eligibility for employment authorization for 
aliens temporarily released on orders of supervision, the impact on the 
renewal population would depend on which aliens remain eligible and if 
the alien's employer already participates in E-Verify or would be 
willing to enroll and participate in E-Verify if the employer is not 
enrolled. DHS cannot rule out that some employers would incur labor 
turnover costs as a result of choosing to not enroll and participate in 
E-Verify. Because of the uncertainty regarding eligibility, DHS is 
unable to estimate a range for the renewal population that would be 
impacted by this provision and attempting to do so would be completely 
speculative. However, DHS acknowledges there could be renewal 
applicants who would be impacted by this provision, which could, in 
turn, affect employers, some of which could be small entities. DHS 
seeks comments from the public on the impacts to small entities from 
enrolling and participating in the E-Verify program. DHS also seeks 
public comment on the number of small businesses that may be affected 
as well as compliance costs to those small businesses as a result of 
this proposed rule.

[[Page 74250]]

iv. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report Record
    This rule would not directly impose any reporting, recordkeeping, 
or other compliance requirements on small entities.
v. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
    DHS is unaware of any relevant federal rule that may duplicate, 
overlap, or conflict with the proposed rule.
vi. Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    This rule directly regulates and impacts aliens temporarily 
released on orders of supervision and individuals are not considered a 
small entity under the Regulatory Flexibility Act. Accordingly, DHS is 
not aware of any alternatives to the proposed rule that accomplish the 
stated objectives and that would minimize the economic impact of the 
proposed rule on small entities as this rule already imposes no direct 
costs on small entities. DHS requests comments and seeks alternatives 
from the public that will accomplish the same objectives.

C. Congressional Review Act

    This proposed rule is a major rule as defined by 5 U.S.C. 804, also 
known as the Congressional Review Act (CRA) as enacted in section 251 
of the Small Business Regulatory Enforcement Fairness Act of 1996, 
Public Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule, 
if enacted as a final rule, would be effective at least 60 days after 
the date on which Congress receives a report submitted by DHS under the 
CRA, or 60 days after the final rule's publication, whichever is later.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The value 
equivalent of $100 million in 1995, adjusted for inflation to 2019 
levels by the Consumer Price Index for All Urban Consumers (CPI-U), is 
$168 million.\142\ While this rule may result in the expenditure of 
more than $100 million annually, the rulemaking is not a ``Federal 
mandate'' as defined for UMRA purposes. Therefore, no actions were 
deemed necessary under the provisions of the UMRA.
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    \142\ U.S. Bureau of Labor Statistics, Historical Consumer Price 
Index for All Urban Consumers (CPI-U): U.S. City Average, All Items, 
available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202001.pdf (last visited Feb. 19, 2020).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2) 
Subtract reference year CPI-U from current year CPI-U; (3) Divide 
the difference of the reference year CPI-U and current year CPI-U by 
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly 
CPI-U for 2019-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 = (103.274/
152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent (rounded). 
Calculation of inflation-adjusted value: $100 million in 1995 
dollars * 1.68 = $168 million in 2019 dollars.
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E. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the federal government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. DHS does not expect that this proposed rule would 
impose substantial direct compliance costs on State and local 
governments or preempt state law. Therefore, in accordance with section 
6 of E.O. 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

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

G. Executive Order 13175 Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have tribal implications under E.O. 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes.

H. Family Assessment

    DHS has reviewed this proposed rule in line with the requirements 
of section 654 of the Treasury General Appropriations Act, 1999, Public 
Law 105-277. DHS has systematically reviewed the criteria specified in 
section 654(c)(1). DHS has determined that the proposed rule may 
adversely cause personal and family-related hardships, including 
causing disruptions to the alien, U.S. citizen, or LPR spouses and/or 
children dependent on the income currently earned by the affected alien 
and may decrease disposable income and increase the poverty of certain 
family members. However, DHS notes that an alien with a final order of 
removal will eventually be removed from the country and such families 
should ultimately expect to experience such hardships. Thus, this 
proposed rule could result in families experiencing such hardships 
earlier in comparison to the state of affairs in the absence of the 
proposed rule. DHS has also determined that the proposed rule neither 
strengthens or erodes the authority and rights of parents in the 
education, nurture and supervision of their children; nor affects the 
ability for a family to perform its functions, or substitutes 
governmental activity or function; this is not an action that can be 
carried out by State or local government or by the family, nor does the 
action establish an implicit or explicit policy concerning the 
relationship between the behavior and personal responsibility of youth 
and the norms of society. For the reasons stated elsewhere in this 
preamble, however, DHS has determined that the benefits of the action 
justify the financial impact on the family. As described in the 
Purpose, Background, and Discussion sections of this rule, DHS has 
compelling legal and policy reasons for the proposed regulatory action, 
including the enforcement of the general prohibition against providing 
alien's ordered removed with employment authorization and encouraging 
those aliens with final orders of removal to depart the United States.

I. National Environmental Policy Act

    DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 
023-01-001-01 Rev. 01 establish the policies and procedures DHS and its 
components use to comply with the National Environmental Policy Act 
(NEPA) and the Council on Environmental Quality (CEQ)

[[Page 74251]]

regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The 
CEQ regulations allow Federal agencies to establish, with CEQ review 
and concurrence, categories of actions (``categorical exclusions''), 
which experience has shown do not individually or cumulatively have a 
significant effect on the human environment and, therefore, do not 
require an Environmental Assessment or Environmental Impact Statement. 
40 CFR 1507.3(b)(2)(ii), 1508.4. For an action to be categorically 
excluded, the Instruction Manual requires the action to satisfy each of 
the following three conditions: (1) The entire action clearly fits 
within one or more of the categorical exclusions; (2) the action is not 
a piece of a larger action; and (3) no extraordinary circumstances 
exist that create the potential for a significant environmental effect. 
Instruction Manual section V.B(2)(a)-(c).
    This proposed rule would amend regulatory criteria for determining 
eligibility for employment authorization for aliens temporarily 
released from custody on an order of supervision by amending two 
existing regulations. First, it would amend 8 CFR 274a.12 to limit 
employment authorization eligibility to aliens whose removal DHS has 
determined is impracticable because all countries from whom DHS has 
requested travel documents have affirmatively declined to issue such 
documents and who establish economic necessity. Second, this proposed 
rule would amend the application process in 8 CFR 274a.13 for aliens 
seeking initial employment authorization by making certain changes to 
the supporting documentation submitted with the application. The 
proposed amendments clearly fit within categorical exclusion A3(a) 
``Promulgation of rules of a strictly administrative or procedural 
nature'' and A3(d) ``Promulgation of rules . . . that interpret or 
amend an existing regulation without changing its environmental 
effect.'' Instruction Manual, Appendix A, Table 1. Furthermore, the 
proposed amendments are not part of a larger action and do not present 
extraordinary circumstances creating the potential for significant 
environmental impacts. Therefore, the proposed amendments are 
categorically excluded from further NEPA review.

J. Paperwork Reduction Act

    DHS is submitting the information collection requirements in this 
rule to OMB for review and approval in accordance with requirements of 
the PRA of 1995, 44 U.S.C. 3501-3512. Table 23 shows a summary of the 
forms that are part of this rulemaking.

                                                                        Table 23
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                      Applicability to
                Form                        Form name          New or updated form     General purpose of     General categories         employment
                                                                                              form                  filing             authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-765..............................  Application for         Update--revises and     Applicants use this     Aliens        USCIS will require
                                      Employment              adds instructions and   form to request        temporarily released   aliens seeking
                                      Authorization.          questions for aliens    employment             on orders of           employment
                                                              seeking employment      authorization from     supervision.           authorization based
                                                              authorization who are   USCIS.                 Aliens         on an order of
                                                              subject to a final                             granted deferral of    supervision or DCAT
                                                              order of removal and                           removal under the      to file an
                                                              have been temporarily                          regulations            application to
                                                              released from custody                          implementing the CAT.  receive an EAD.
                                                              on an order of
                                                              supervision and for
                                                              aliens who are
                                                              recipients of
                                                              deferral of removal
                                                              under the regulations
                                                              implementing the CAT.
I-765WS............................  Form I-765 Worksheet..  Update--updates         Applicants for          Aliens        USCIS will require
                                                              instructions to         employment             temporarily released   aliens seeking
                                                              include aliens          authorization use      on orders of           employment
                                                              temporarily released    this form to provide   supervision.           authorization based
                                                              on orders of            financial                                     on an order of
                                                              supervision in the      information                                   supervision to
                                                              list of aliens who      demonstrating an                              submit Form I-765WS
                                                              must complete the       economic need for                             to establish
                                                              Form I-765WS to show    employment                                    economic need for an
                                                              economic necessity      authorization and an                          EAD.
                                                              for employment          explanation of the
                                                              authorization.          circumstances
                                                                                      resulting in the
                                                                                      need for an EAD.
--------------------------------------------------------------------------------------------------------------------------------------------------------

USCIS Form I-765 and I-765WS
    DHS invites comment on the impact to the proposed collection of 
information. In accordance with the PRA, the information collection 
notice is published in the Federal Register to obtain comments 
regarding the proposed edits to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0040 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    1. Evaluate whether the collection of the information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    2. Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Forms I-765; I-765WS; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals and households. USCIS 
will require an individual seeking employment authorization who has a 
final order of

[[Page 74252]]

removal and was temporarily released on an order of supervision to file 
the Form I-765. USCIS will use the data collected on this form to 
determine if an individual temporarily released on an order of 
supervision and seeking employment authorization is eligible based on 
DHS's determination that his or her removal is impracticable because 
all countries from whom DHS has requested travel documents have 
affirmatively declined to issue such documents. Form I-765WS is used to 
determine if the individual seeking employment authorization has an 
economic need to work.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-765 
is 2,286,000 and the estimated hour burden per response is 5 hours; the 
estimated total number of respondents for the information collection 
Form I-765WS is 307,697 and the estimated hour burden per response is 
.50 hours; the estimated total number of respondents for the 
information collection biometrics is 308,232 and the estimated hour 
burden per response is 1.17 hours: the estimated total number of 
respondents for the information collection passport-style photographs 
is 2,280,303 and the estimated hour burden per response is .50 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 13,084,631hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this information collection is $400,838,850.

K. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 106

    Immigration, user fees.

8 CFR Part 241

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

8 CFR Part 274a

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

Regulatory Amendments

    Accordingly, DHS proposes to amend parts 106, 241 and 274a of 
chapter I, subchapter B, of title 8 of the Code of Federal Regulations 
as follows:

PART 106--USCIS FEE SCHEDULE

0
1. The authority for Part 106 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub. 
L. 107-609; 48 U.S.C. 1806; Pub. L. 115-218.

0
2. Amend Sec.  106.2 by adding paragraph (a)(32)(i)(C) to read as 
follows:


Sec.  106.2  Fees

    (a) * * *
    (32) * * *
    (i) * * *
    (C) An alien subject to a final order of removal and temporarily 
released on an order of supervision who is applying for initial or 
renewal of employment authorization under 8 CFR 274a.12(c)(18).

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

0
3. The authority citation for part 241 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4103(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 
101, et. seq.); 8 CFR part 2.

0
4. Amend Sec.  241.4 by revising paragraph (j)(3) to read as follows:


Sec.  241.4  Continued detention of inadmissible, criminal, and other 
aliens beyond the removal period.

* * * * *
    (j) * * *
    (3) Employment authorization. An alien who is subject to a final 
order of deportation or removal and whom U.S. Immigration and Customs 
Enforcement has temporarily released on an order of supervision 
pursuant to section 241(a)(3) of the Act may apply to USCIS for 
employment authorization pursuant to the procedures prescribed under 8 
CFR 274a.12(c)(18) and 274a.13. Any grant of employment authorization 
by USCIS is completely discretionary and the burden is on the alien to 
establish that he or she warrants a favorable exercise of discretion to 
receive employment authorization under this part. USCIS will only grant 
employment authorization if USCIS determines that the alien meets the 
criteria for employment authorization under 8 CFR 274a.12(c)(18) and 
warrants a favorable exercise of discretion. The alien must request 
employment authorization on the form and in the manner prescribed by 
USCIS and according to the form instructions, and must submit 
biometrics, with any required fee.
* * * * *
0
5. Amend Sec.  241.5 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  241.5  Conditions of release after removal period.

    (a) Order of Supervision. Any alien U.S. Immigration and Customs 
Enforcement releases pursuant to 8 CFR 241.4 or 241.13(h), must be 
temporarily released on an order of supervision and must be issued a 
completed Form I-220B, Order of Supervision, specifying the conditions 
of release and the consequences for failure to comply with the 
conditions of release, including DHS authority to take the alien back 
into custody and the potential for criminal charges and fines under 
section 243 of the Act if the alien fails to comply with the conditions 
of release. The Secretary, Director of ICE, or designated delegate must 
have the authority to issue an order of supervision under this section. 
The order of supervision must specify the conditions of release 
including, but not limited to, the following:
* * * * *
    (c) Employment authorization. An alien who is subject to a final 
order of deportation or removal and whom U.S. Immigration and Customs 
Enforcement has temporarily released on an order of supervision 
pursuant to section 241(a)(3) of the Act may apply to USCIS for 
employment authorization pursuant to 8 CFR 274a.12(c)(18) and 274a.13. 
USCIS will only grant employment authorization under this paragraph if 
USCIS determines, in the sole and unreviewable discretion of USCIS, 
that the alien meets the criteria to apply for employment authorization 
under 8 CFR 274a.12(c)(18) and warrants a favorable exercise of 
discretion.


Sec.  241.13  [Amended]

0
6. Amend Sec.  241.13(h)(3) by
0
a. Removing the words ``The Service'' and adding in its place 
``USCIS''; and
0
b. Removing the reference to paragraph ``Sec.  241.5(c)'' and adding in 
its place ``8 CFR 241.5, 274a.12(c)(18), and 274a.13''.

[[Page 74253]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

    Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.

0
8. Amend Sec.  274a.12 by revising paragraphs (a)(10) and (c)(18) to 
read as follows:


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

    (a) * * *
    (10) An alien granted withholding of removal under section 
241(b)(3) of the Act or pursuant to 8 CFR 208.16(c), 8 CFR 1208.16(c), 
and an alien granted CAT deferral of removal pursuant to 8 CFR 208.17, 
1208.17, for the period of time in that status, as evidenced by an 
employment authorization document issued by USCIS.
* * * * *
    (c) * * *
    (18)(i) USCIS, in its sole and unreviewable discretion, may grant 
employment authorization to an alien who is subject to a final order of 
deportation or removal and temporarily released from custody on an 
order of supervision, pursuant to section 241(a)(3) of the Act, who 
establishes economic necessity for employment, and for whom DHS has 
determined that the alien's removal is impracticable because all 
countries from which DHS has requested travel documents have 
affirmatively declined to issue such documents.
    (ii) USCIS may grant employment authorization under 8 CFR 
274a.12(c)(18) for a period that USCIS determines is appropriate at its 
discretion, not to exceed one year. Factors that USCIS will consider in 
determining whether an applicant with a final order of removal and 
temporarily released on an order of supervision warrants a favorable 
exercise of discretion include but are not limited to:
    (A) Whether the alien is the primary provider of economic support 
for a dependent U.S. citizen or lawful permanent resident spouse, 
child(ren), and/or parent;
    (B) Whether the alien is complying with the order of supervision;
    (C) The anticipated length of time before the alien can be removed 
from the United States; and
    (D) The alien's criminal history, including but not limited to 
whether the alien has been arrested for or convicted of any crimes 
after having been ordered removed from the United States and released 
from custody on an order of supervision;
    (iii) For renewal applications only, the applicant must also show 
that he or she is employed by a U.S. employer who is a participant in 
good standing in E-Verify.
* * * * *
0
9. Amend Sec.  274a.13 by adding paragraph (a)(3) and revising 
paragraph (b) to read as follows:


Sec.  274a.13  Application for employment authorization.

    (a) * * *
    (3) Aliens with final orders of removal or deportation who have 
been temporarily released from detention on an order of supervision and 
whose removal DHS has determined is impracticable because all countries 
from which DHS has requested travel documents have affirmatively 
declined to issue such documents, and are applying for initial 
employment authorization or renewal of employment authorization based 
on 8 CFR 274a.12(c)(18) must file the appropriate form designated by 
USCIS, with the prescribed fee, and in accordance with the form 
instructions.
    (i) Evidence for initial applications. Aliens who are applying for 
initial employment authorization under 8 CFR 274a.12(c)(18) must submit 
the following supporting documentation:
    (A) A decision by an immigration judge or the Board of Immigration 
Appeals or an administrative removal order issued by DHS demonstrating 
that the alien is subject to a final order of removal or deportation;
    (B) A completed Form I-765WS, Form I-765 Worksheet or successor 
form designated by USCIS and in accordance with the form instructions 
to show economic necessity; and
    (C) A copy of the complete order of supervision issued by U.S. 
Immigration and Customs Enforcement including a copy of the complete 
Personal Report Record which reflects that the alien has been in 
continuous compliance with the order of supervision, from the date the 
alien was temporarily released on an order of supervision through the 
time of adjudication of the application for employment authorization.
    (ii) Evidence for Renewal Applications for Employment 
Authorization. In addition to the evidence required under paragraph 
(a)(3)(i) of this section, aliens seeking renewal of employment 
authorization based on 8 CFR 274a.12(c)(18) must provide their U.S. 
employer's E-Verify Company Identification Number (or client company 
identification number if the U.S. employer uses an agent) and the 
employer's name as listed in E-Verify. An E-Verify employer is a 
participant in good standing if the employer has enrolled in E-Verify 
with respect to all hiring sites in the United States that employ an 
alien temporarily released from custody on an order of supervision who 
has received employment authorization under this rule, when the alien 
files their application for employment authorization; is in compliance 
with all requirements of the E-Verify program, including but not 
limited to verifying the employment eligibility of newly hired 
employees at those hiring sites; and continues to be a participant in 
good standing in E-Verify at any time during which the employer employs 
an alien temporarily released on an order of supervision who has 
received employment authorization under this rule.
    (b) Approval of application. If USCIS approves an application for 
employment authorization, USCIS will notify the alien. USCIS will issue 
an Employment Authorization Document (EAD) valid for a specific period 
and subject to any terms and conditions noted. For aliens granted 
employment authorization based on DHS's determination that the alien's 
removal is impracticable because all countries from which DHS has 
requested travel documents have affirmatively declined to issue a 
travel document, USCIS may limit the validity period, in its 
discretion, not to exceed one year.
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel,U.S. 
Department of Homeland Security.
[FR Doc. 2020-25473 Filed 11-17-20; 11:15 am]
BILLING CODE 9111-97-P