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

Federal RegisterNov 19, 2020

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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.

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

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,

and the Administration's efforts to strengthen protections for U.S. workers. DHS is proposing to modify its regulations in the following areas:

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.

•

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.

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.

Currently, economic necessity is only a discretionary factor.

See

8 CFR 274a.12(c)(18)(i).

•

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

applicants submit biometrics to USCIS

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).

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).

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).

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

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.

•

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

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.

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

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.

See

8 CFR 208.16-208.18 and 1208.16-1208.18.

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.

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.

•

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

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.

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.

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

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 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.

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.

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).

By comparison, the unemployment rate for September 2019 was 3.5%.

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.

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.

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/.

Department of Labor, Bureau of Labor Statistics, The Employment Situation—September 2020. Available at:

https://www.bls.gov/news.release/archives/empsit_10022020.pdf.

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.

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.

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 2 below.

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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

workers (scenario presented in Tables 2(A) and (B)).

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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.

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

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.

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.

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)).

See, e.g.,

H.R. Conf. Rep. 104-828, title III, subtitle A (1996).

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

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.

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.

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).

Repatriation includes repatriation of aliens to the country of nationality or citizenship as well as to the country of last habitual residence.

See

DHS Office of Inspector General Report, “ICE Faces Barriers in Timely Repatriation of Detained Aliens,” OIG-19-28 (Mar. 11, 2019).

Id.

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

Davis,

533 U.S. 678 (2001).

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.

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

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

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.

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).

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

but declined to 7.9 percent in September.

However, it remains above 3.5%, which was unemployment rate for the same month last year (

i.e.,

September 2019).

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.

workers or to guarantee that it will pay the prevailing wage or maintain certain work conditions.

Department of Labor, Bureau of Labor Statistics, The Employment Situation—April 2020. Available at:

https://www.bls.gov/news.release/archives/empsit_05082020.pdf.

Department of Labor, Bureau of Labor Statistics, The Employment Situation—September 2020. Available at:

https://www.bls.gov/news.release/pdf/empsit.pdf.

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).

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.

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

Fiscal year

Total number of aliens temporarily released on an order of supervision

Number of aliens on an order of supervision for whom DHS could not obtain travel docs

Approximate percentage of total

(%)

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 Period

9,365

459

4.9

* 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),

U non-immigrant status (victims of criminal activity),

and S non-immigrant status (witnesses in criminal investigations or prosecutions).

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.

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).

See

INA sec. 101(a)(15)(U) (Eligibility requirements include helpfulness to law enforcement in the investigation or prosecution of a qualifying crime).

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).

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

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.

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.

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.

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.

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.

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).

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).”

INA sec. 241(a)(1)(A), (B)(i), 8 U.S.C. 1231(a)(1)(A), (B)(i).

INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).

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.

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)

once it has been determined that there is not a “significant likelihood of removal in the reasonably foreseeable future.”

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.

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.

533 U.S. 678 (2001).

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.

Zadvydas,

533 U.S. at 701.

Id.; see also

8 CFR 241.13(d).

See

8 CFR 241.5(a).

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.

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).

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).

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.

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

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.

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.

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.

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.”

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.”

Convention relating to the Status of Refugees art. 33,

opened for signature

July 28, 1951, 198 U.N.T.S. 137.

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., § 2442(b) (Oct. 21, 1998). DOJ published regulations in 1999 implementing FARRA § 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.

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.

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.

While some statutory provisions specifically allow the Secretary to grant employment authorization as a matter of discretion,

the Secretary's general authority under section 274A(h)(3) of the INA, 8 U.S.C.

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

the alien's removal is impracticable or contrary to the public interest.

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).

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 *

Fiscal year

Total number of aliens removed from the United States

Number of aliens on

orders of supervision for whom DHS could not obtain travel docs to 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).

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;

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.

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.

The supervision is

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.

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,

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.

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.

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.

Table 12—Total Annual Form I-765 Receipts and Approvals for Aliens Temporarily Released on Orders of Supervision, FY 2010 to FY 2019

Fiscal year

Initial

Receipts

Approvals

Renewal

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).

DHS recognizes that the 5-year annual percentage growth rate also shows a decline (−10.0 percent).

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.

Calculation: (((FY 2019 Initial Receipts 5,697/FY 2010 Initial Receipts 6,420) ‸ (1/10))−1) * 100 = −1.2 percent.

Calculation: (((FY 2019 Initial Receipts 5,697/FY 2015 Initial Receipts 9,628) ‸ (

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.

Similar to the growth rates for the initial receipts, renewal receipts have a negative annual percentage growth rates over the 5-year period.

Calculations:

(((FY 2019 Renewal Receipts 19,306/FY 2015 Renewal Receipts 22,801) ‸ (

1/5

))−1) * 100 = −3.3 percent.

(((FY 2019 Renewal Receipts 19,306/FY 2010 Renewal Receipts 9,328) ‸ (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.

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.

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.

Calculations:

(6,398 (initial approvals 10-year average)/7,615 (initial receipts 10-year average)) × 100 = 84 percent (rounded).

(17,483 (renewal approvals 10-year average)/18,786 (renewal receipts 10-year average)) × 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

of initial receipts from FY 2020, 5,629, which equals 4,728 (rounded).

The FY 2019 renewal receipts, 19,306, is multiplied by the 5-year annual percentage growth rate of −3.3 to get −637 (rounded).

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.

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.

Calculation: 5,629 (FY 2020 estimated initial receipts) × 84 percent = 4,728 estimated FY 2020 initial approvals.

Calculation: FY 2019 renewal receipts 19,306 × 5-year annual percentage growth rate −0.033 = −637.

Calculation: 18,669 (FY 2020 estimated renewal receipts) × 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

Fiscal year

Initial

Receipts

Approvals

Renewal

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.

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.

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.

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).

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.

Calculations: For example, for FY2020—(147 estimated lower bound/4,728 projected number of initial approvals) × 100 = 3.1 percent (rounded). 147 estimated upper bound/4,241 projected number of initial approvals) × 100 = 3.5 percent (rounded).

BILLING CODE 9111-97-P

EP19NO20.088

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.

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.

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

wage in the United States . . . [was] $11.80 an hour in 2019.”

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.

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.

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).