[Federal Register Volume 86, Number 88 (Monday, May 10, 2021)]
[Proposed Rules]
[Pages 24751-24752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09670]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

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; Withdrawal

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

ACTION: Proposed rule; withdrawal.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is withdrawing 
a notice of proposed rulemaking (NPRM) that published on November 19, 
2020. The NPRM proposed to revise DHS regulations governing employment 
authorization for individuals who have a final order of removal and are 
released from DHS custody on an order of supervision. The NPRM also 
proposed to amend DHS regulations to clearly indicate the employment 
eligibility of individuals who have been granted deferral of removal 
based on the United States' obligations under the Convention Against 
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(CAT).

DATES: DHS withdraws the NPRM as of May 10, 2021.

ADDRESSES: The docket for this withdrawn proposed rule is available at 
http://www.regulations.gov. Please search for docket number USCIS-2019-
0024.

FOR FURTHER INFORMATION CONTACT: Steven P. Kvortek, Acting Chief, 
Security and Public Safety Division, Office of Policy and Strategy, 
U.S. Citizenship and Immigration Services, DHS, 5900 Capital Gateway 
Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a 
toll-free number). Individuals with hearing or speech impairments may 
access the telephone numbers above via TTY by calling the toll-free 
Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: On November 19, 2020, DHS published an NPRM 
titled ``Employment Authorization for Certain Classes of Aliens With 
Final Orders of Removal.'' (85 FR 74196). This NPRM proposed to 
eliminate employment authorization under 8 CFR 274a.12(c)(18) for 
individuals who have a final order of removal and are released on an 
order of supervision with a narrow exception. DHS also proposed to 
amend its regulations to clearly indicate that individuals who have 
been granted CAT deferral of removal would be employment authorized 
based on their grant of CAT deferral of removal.
    In response to the NPRM, DHS received more than 302 comments during 
the 30-day public comment period. Nearly 98 percent of commenters 
opposed the proposed rule with several commenters specifically 
requesting that DHS withdraw the NPRM.\1\ Less than 2 percent expressed 
support for the rule with such commenters generally supporting the rule 
because they believed it would deter illegal immigration and protect 
U.S. workers. The commenters who opposed the NPRM argued that it would 
significantly limit the ability of individuals who have a final order 
of removal and are released on an order of supervision to legally work, 
be self-sufficient, and support their families, which may include U.S. 
citizen children and lawful permanent resident spouses or partners. 
Several commenters also noted the proposed rule would impose exorbitant 
costs and burdens on U.S. employers related to labor turnover and the 
proposed E-Verify requirement. Various state and local agencies, 
including Attorneys General from 15 states, also opposed the rule on 
the basis it would decrease tax revenue, deny states various revenue 
streams, and increase costs related to state-funded public benefit 
programs. Many commenters also disagreed with the NPRM's assertion that 
the proposed changes would incentivize individuals with final orders of 
removal to leave the United States. They argued that the majority of 
individuals who have a final order of removal and are released on an 
order of supervision are in the United States with DHS's 
acknowledgment, as reflected by their release on an order of 
supervision, and that DHS's inability to remove them primarily stems 
not from inaction on the individual's part but due to the unwillingness 
of foreign governments to issue them travel documents and cooperate in 
their repatriation.
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    \1\ Comments may be viewed at the Federal Docket Management 
System (FDMS) at http://www.regulations.gov, docket number USCIS-
2019-0024.
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    The NPRM stemmed from two executive orders issued by President 
Trump, which have been revoked since the publication of the NPRM. DHS 
initiated the regulatory action pursuant to Executive Order 13768, 
``Enhancing Public Safety in the Interior of the United States'' (Jan. 
24, 2017) and Executive Order 13788, ``Buy American and Hire American'' 
(Apr. 18, 2017). These executive orders directed DHS to revise or 
rescind any regulations inconsistent with these orders. DHS issued the 
NPRM after determining that the current regulations at 8 CFR 
274a.12(c)(18) could be inconsistent with the above-mentioned executive 
orders.
    On January 20, 2021, President Biden issued Executive Order 13993, 
``Revision of Civil Immigration Enforcement Policies and Priorities,'' 
which revoked Executive Order 13768. Further, on January 25, 2021, 
President Biden issued Executive Order 14005, ``Ensuring the Future Is 
Made in All of America by All of America's Workers,'' which revoked 
Executive Order 13788. Executive Orders 13993 and 14005 directed 
agencies to review, revise, or rescind any agency actions or guidance 
inconsistent with the executive orders.
    Having reviewed the NPRM and the public comments in light of 
Executive Orders 13993 and 14005, DHS has decided to withdraw the NPRM. 
The original bases and rationale for promulgating the NPRM no longer 
align with the current Administration's immigration enforcement 
priorities. This Administration is focused on protecting the interests 
of American workers by ensuring the ``[Federal

[[Page 24752]]

Government] . . . procure[s] goods, products, materials, and services 
from sources that will help American businesses compete in strategic 
industries and help America's workers thrive.'' By withdrawing the 
proposed rule, the Administration will allow individuals with final 
orders of removal who are released from DHS custody on an order of 
supervision, and are in a position to work, to continue to work for 
American businesses that provide services in key industries and to 
supplement the existing U.S. workforce.
    As noted in Executive Order 13933, which articulates the 
Administration's overarching values and priorities on civil immigration 
enforcement, ``the task of enforcing the immigration laws is complex 
and requires setting priorities to best serve the national interest.'' 
\2\ DHS has been directed to focus its limited resources on national 
and border security, addressing the humanitarian challenges at the 
southern border, and ensuring public health and safety.\3\ In doing so, 
DHS must develop enforcement priorities and use its limited resources 
to pursue those priorities. Additionally, the limited resources of the 
agency and the significant operational challenges caused by the COVID-
19 pandemic do not allow DHS to respond to all immigration violations 
or remove all individuals with a final order of removal.\4\ DHS's 
enforcement priorities, including removals, are to be focused on 
national security, public safety, and border security.\5\
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    \2\ See Exec. Order No. 13993, 86 FR 7051, Sec. 1 (Jan. 25, 
2021).
    \3\ Id.
    \4\ See Acting ICE Director Tae Johnson, ``Interim Guidance: 
Civil Immigration Enforcement and Removal Priorities,'' Feb. 18, 
2021, available at: https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf (last 
visited March 3, 2021).
    \5\ Id.
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    DHS believes that continuing to provide employment authorization to 
individuals who have a final order of removal and are released from DHS 
custody on an order of supervision is consistent with this 
Administration's values and priorities on immigration enforcement. It 
will allow individuals who do not fall within the Administration's 
enforcement priorities and who are still in the United States to 
continue to qualify for employment authorization, to legally work, 
remain self-sufficient, and support their families, which in many 
instances include U.S. citizen children.
    This withdrawal notice does not affect the continued employment 
eligibility of individuals who have been granted CAT deferral of 
removal. Such individuals currently qualify for employment 
authorization under 8 CFR 274a.12(c)(18) and will continue to do so. 
The primary purpose behind the proposed regulatory amendments related 
to individuals with CAT deferral of removal was to clearly indicate in 
the regulations that individuals with CAT deferral of removal are 
eligible for employment authorization. Even though DHS is not pursuing 
the proposed regulatory amendments at this time, individuals who are 
granted CAT deferral of removal will continue to qualify for employment 
authorization under 8 CFR 274a.12(c)(18). DHS plans to consider similar 
regulatory amendments clarifying eligibility for employment 
authorization for individuals with CAT deferral of removal as part of 
future rulemaking efforts consistent with DHS's priorities, policies, 
and applicable law.
    For all the reasons discussed above, DHS is withdrawing the NPRM.

Authority

    As stated in the NPRM, DHS has general and specific statutory 
authority to detain individuals with final orders of removal, release 
such individuals from custody on an order of supervision, and grant 
them employment authorization. 85 FR 74211. DHS is withdrawing the NPRM 
using those same authorities. Executive Order 13993, ``Revision of 
Civil Immigration Enforcement Policies and Priorities;'' Executive 
Order 14005, ``Ensuring the Future Is Made in All of America by All of 
America's Workers;'' 8 U.S.C. 1324a(h)(3); and 8 U.S.C. 1231(a)(7).

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-09670 Filed 5-7-21; 8:45 am]
BILLING CODE 9111-97-P