Rules and Procedures for Filing an Application for Employment Authorization

SUMMARY: The Immigration and Naturalization Service (INS) publishes

this rule to inform the public of a change in procedures for filing

certain employment authorization applications. At present, persons

seeking work authorization apply either by mailing an application to an

INS service center or by delivering it to an INS district office. The

INS intends to expand its direct mailing program, so that more

categories of applicants can file their work authorization applications

by mail directly with the service centers. The expansion will enhance

the agency's ability to adjudicate work authorization applications

efficiently. This final rule revises the regulations to reflect the

changed filing procedures. It also makes a technical amendment to the

regulatory provisions governing work authorization for persons applying

for suspension of deportation and two technical amendments to the

regulatory provision governing interim work authorization for asylum

reform applicants. The instructions that accompany an application for

work authorization are being revised simultaneously to provide

comprehensive general information on filing procedures.

EFFECTIVE DATE: This rule is effective June 3, 1995.

FOR FURTHER INFORMATION CONTACT:

Jack Tabaka, Senior Examiner Adjudications Division, Immigration and

Naturalization Service, 425 I Street NW., Washington, DC 20536, (202)

616-7432.

SUPPLEMENTARY INFORMATION: The INS announced the expansion of its

direct mail program in an interim rule published in the Federal

Register on July 1, 1994 at 59 FR 33903. In that interim rule, the INS

announced its intent to reduce processing time and the need for

personal visits to the INS by permitting applicants to file certain

applications by mail to the service centers. Under INS regulations, an

applicant generally should file an application in accordance with the

instructions that accompany the application form. 8 CFR 103.2(a). The

regulations required employment authorization applicants to file their

applications with the district director. Many of the references to

filing with the district director were removed with the publication of

the July 1, 1994 interim rule to permit applicants to mail applications

to the service centers. Certain employment authorization regulations

continue to require that an applicant file an application with the

district director having jurisdiction over the applicant's place of

residence. While the interim rule removed many of the references to

district director and replaced those references with the term

``director'' so that service center directors could accept such

applications, further changes to the regulations are necessary to

accomplish the expansion of the direct mail program. This rule

eliminates the remaining references to ``district director'' filing,

consistent with the change in filing procedures announced in the

interim rule.

On July 1, 1994 the INS also announced the implementation of a

pilot direct mail program for persons applying at the Baltimore

District Office in a Federal Register notice published at 59 FR 33985.

The INS is reviewing the comments it has received from the public on

both the interim rule and the direct mail pilot program notice and will

publish a response in the future.

Based in part on the addition of new personnel, INS service centers

are able to accept a greater volume of applications from a greater

number of categories of employment authorization applicants. This

change to the employment authorization filing procedures will reduce

the number of visits to district offices now required to obtain work

authorization and will permit the INS to further streamline its

procedures and to improve overall efficiency to its customers. To

explain more fully the changed filing procedures, the INS has revised

the instructions that accompany Form I-765, Application for Employment

Authorization. The INS has received Office of Management and Budget

approval under the Paperwork Reduction Act for the revised set of

instructions and is in the process of having the new I-765 package

published and distributed to its district offices and its form

distribution centers. The corresponding regulations are revised below

to direct employment authorization applicants to follow the

instructions that accompany the employment authorization application

when determining where to file.

El Salvadoran and Guatemalan nationals who are eligible for

benefits under the American Baptist Church v. Thornburgh, 760 F.Supp.

796 (N.D. Cal. 1991) (``ABC'') should refer to special filing

instructions which will supplement the I-765 instructions. Those

instructions can be obtained visiting local INS offices or by calling

1-800-755-0777. Under this change in filing procedures, asylum

applicants generally will file future employment authorization

applications at the service centers and will no longer be required to

file at district offices.

The change in filing procedures is, in the view of the INS, a rule

of agency procedure or practice. Therefore, it is not subject to the

notice and comment requirements of 5 U.S.C. 553. The INS publishes this

rule of procedure or practice in the Federal Register for the guidance

of the public under 5 U.S.C. 552. The INS intends to provide

information to the public regarding the new filing procedures through

its public outreach programs in addition to publication of this rule.

This rule also makes three technical corrections. On August 23,

1991, the INS eliminated the requirement under 8 CFR 274a.12(c)(10)

that applicants for suspension of deportation establish economic

necessity as a condition of [[Page 21974]] obtaining work

authorization. 56 FR 41767. Nevertheless, the phrase ``if the alien

establishes the economic need to work'' was not removed in that section

and continued to appear in the Code of Federal Regulations. The final

rule revising the asylum regulations on December 5, 1994 perpetuated

that mistake. 59 FR 62284. The December 5, 1994 regulations also refer

mistakenly to asylum applications rather than employment applications

in a sentence having to do with the availability of interim employment

authorization. This final rule corrects these two technical errors. In

addition, the INS has made a technical correction to

Sec. 274a.13(a)(2), which concerns applications for employment

authorization filed in connection with an asylum application. The last

sentence of that section was amended at the publication of the December

5, 1994 final rule to state that ``[t]he Service Center shall

adjudicate the application within 30 days of receipt.'' This is correct

insofar as it reiterates the period under asylum reform for

adjudicating an initial request by an asylum applicant for employment

authorization under Sec. 208.7(a)(1). It is incorrect, however, to the

extent that it appears to apply to applications for renewal or

replacement of employment authorization, which are discussed in the

sentence immediately preceding it. As is clear from the preamble to the

December 5, 1994 final rule, specifically at 59 FR 62291, and from

Sec. 274a.13(d), the INS is to adjudicate requests for renewal or

replacement of employment authorization within 90 days, not 30.

Therefore, the last sentence of Sec. 274a.13(a)(2) has been removed.

Regulatory Flexibility Act

The Commissioner of the INS, in accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by

approving it certifies that it will not have a significant economic

impact on a substantial number of small entities. This regulation

merely provides notice to the public of change in filing procedures for

employment authorization applications by correcting the remaining

regulatory references to filing with the district director and makes

two technical corrections to recently published INS regulations. It

does not change the amount of the application fee though it corrects

the figure listed currently in the regulations.

Executive Order 12866

This rule is not considered by the INS to be a ``significant

regulatory action'' under Executive Order 12866, section 3(f),

Regulatory Planning and Review, and the Office of Management and Budget

has waived its review process under section 6(a)(3)(A).

Executive Order 12612

This final rule will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12606

The Commissioner of the INS certifies that she has assessed this

rule in light of the criteria in Executive Order 12606 and has

determined that this regulation will not have an impact on family well-

being.

Paperwork Reduction Act

The information collection requirement contained in this rule has

been cleared by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. The clearance number for

this collection is 1115-0163.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Freedom of information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 210

Aliens, Migrant labor, Reporting and recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Employment, Foreign

officials, Health professions, Reporting and recordkeeping

requirements, Students.

8 CFR Part240

Administrative practice and procedure, Immigration.

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 245a

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557; 3 CFR 1982 Comp., p. 166; 8 CFR part 2.

Sec. 103.6 [Amended]

2. Section 103.6(a)(2)(ii) is amended by removing the phrase

``District Director'' and adding the term ``INS'' in its place.

3. In Sec. 103.6(a)(2)(iii) the first sentence is amended by

removing ``Sec. 109.1(b)'' and adding ``Sec. 274a.12'' in its place.

* * * * *

4. In Sec. 103.7 (b)(1), the entry for Form I-765 is revised to

read as follows:

Sec. 103.7 Fees.

* * * * *

(b)(1) * * *

Form I-765. For filing an application for employment

authorization pursuant to 8 CFR 274a.13--$70, unless otherwise noted

on the instructions attached to the application form.

* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

5. The authority citation for part 208 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.

9701; 8 CFR part 2.

6. Section 208.7 is amended by:

a. In paragraph (a)(1), the sixth sentence, removing the word

``asylum'' and adding the word ``employment'' in its place;

b. In paragraph (c), the first sentence of the introductory text,

removing the phrase ``asylum officer, or district director where

appropriate'' and adding in its place the phrase ``INS, in accordance

with the instructions on or attached to the employment authorization

application'';

c. In paragraph (c), in the second sentence, removing the phrase

``asylum [[Page 21975]] officer'' and adding in its place the term

``INS''; and

d. In paragraph (e) remove the phrase ``district director, in his

discretion,'' and add the term ``INS''.

7. PART 210--SPECIAL AGRICULTURAL WORKERS

8. The authority citation for part 210 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.

Sec. 210.2 [Amended]

9. In Sec. 210.2(c)(4)(iii), the third sentence is amended by

removing the words ``A district director'' and adding the words ``The

INS'' in their place.

10. Section 210.4(b) is amended by:

a. Removing in paragraph (b)(1), in the first sentence, the phrase

``may only be granted by a Service legalization office'' and adding in

its place the phrase ``be granted by the INS'';

b. Revising in paragraph (b)(2), the fourth and fifth sentences;

and

c. Revising in paragraph (b)(3), the second sentence, to read as

follows:

Sec. 210.4 Status and benefits.

* * * * *

(b) * * *

(2) Employment and travel authorization prior to the granting of

temporary resident status. * * * Employment and travel authorization

subsequent to an interview will be granted on the employment

authorization document, and will be restricted to 6 months duration,

pending final determination on the application for temporary resident

status. If a final determination has not been made on the application

prior to the expiration date of the employment authorization document,

that date may be extended upon return of the employment authorization

document by the applicant to the INS office. * * *

(3) Employment and travel authorization upon grant of temporary

resident status. * * * The applicant may appear at an INS office, and

upon surrender of the previously issued Form I-688A or employment

authorization document will be issued Form I-688, Temporary Resident

Card. * * *

* * * * *

PART 214--NONIMMIGRANT CLASSES

11. The authority citation for part 214 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,

1281, 1282; 8 CFR part 2.

12. Section 214.2 is amended by:

a. Revising in paragraph (f)(11), introductory text the fourth

sentence;

b. Removing in paragraph (f)(11), introductory text the fifth

sentence;

c. Removing in paragraph (f)(12), in the second sentence the term

``director'';

d. Removing in paragraph (f)(16)(i), introductory text the phrase

``A Service Director'' and adding in its place the phrase ``The

Service'';

e. Removing in paragraph (f)(16)(i)(A), the word ``director'';

f. Revising paragraph (f)(16)(ii);

g. Removing in paragraph (j)(1)(v)(A), in the second sentence, the

phrase ``8 CFR 274a.12(c)(5)'' and adding the phrase ``the Service'' in

its place;

h. Removing in paragraph (m)(14)(ii), the second and third

sentences; and

i. Removing in paragraph (m)(15), the term ``district director''

and adding the term ``Service'' in its place.

The revised text reads as follows:

Sec. 214.2 Special Requirements for admission, extension, and

maintenance of status.

* * * * *

(f) * * *

(11) * * * An F-1 student must apply to the INS for the EAD by

filing the Form 1-765. * * *

* * * * *

(16) * * * * *

(ii) Decision. If the Service reinstates the student, the Service

shall endorse the Form I-20 A-B to indicate that the student has been

reinstated, return the I-20 ID to the student, and forward the school

copy of the form to the Service's processing center for data entry. If

the Service does not reinstate the student, the student may not appeal

that decision.

* * * * *

PART 240--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED

STATES

13. The authority citation for part 240 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1254a, 1254a note.

Sec. 240.12 [Amended]

14. In Sec. 240.12 paragraphs (a) and (c) are amended by removing

the term ``district director'' and adding in its place the term

``INS''.

Sec. 240.17 [Amended]

15. In Sec. 240.17(a) the first and third sentences are amended by

removing the term ``District Office'' and adding in its place the words

``INS designated office''.

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE

UNITED STATES: APPREHENSION, CUSTODY, HEARING AND APPEAL

16. The authority citation for part 242 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,

1252b, 1254, 1362; 8 CFR part 2.

17. In Section 242.6, paragraph (e)(5) is revised to read as

follows:

Sec. 242.6 Family Unity Program.

* * * * *

(e) * * *

(5) Employment authorization. An alien granted benefits under the

Family Unity Program is authorized to be employed in the United States

and may apply for an employment authorization document in accordance

with the instructions accompanying Form I-765, Application for

Employment Authorization.

* * * * *

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR

LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF

THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED BY PUBLIC LAW 99-

603, THE IMMIGRATION REFORM AND CONTROL ACT OF 1986, AND PUBLIC LAW

100-204, SECTION 902

18. The authority citation for part 245a continues to read as

follows:

Authority: 8 U.S.C 1101, 1103, 1255a and 1255a note.

Sec. 245a.2 [Amended]

19. Section 245a.2 is amended by:

a. Removing in paragraph (j), in the first sentence the word

``Legalization'' and also by removing the phrase ``Forms I-688 and I-

688A'' and adding in its place the words ``an employment authorization

document and Form I-688'';

b. Removing in paragraph (n)(1), in the first and last sentences,

the word ``Legalization'';

c. Revising in paragraph (n)(2)(ii) the third sentence to read as

set forth below;

d. Removing in paragraph (n)(3), in the last sentence, the word

``Legalization''.

Sec. 245a.2 Application for temporary residence.

* * * * *

(n) * * *

(2) * * *

(ii) * * * [[Page 21976]]

The employment authorization document will be given to the

applicant after an interview has been completed by an immigration

officer unless a formal denial is issued by the appropriate INS office.

* * *

* * * * *

20. Section 245a.4 is amended by:

a. Removing in paragraph (b)(10), in the first sentence the phrase

``Forms I-688A and I-688'' and adding in its place the phrase ``an

employment authorization document and Form I-688'';

b. Removing in paragraph (b)(14)(ii)(b), in the third sentence the

phrase ``Form I-688A, Employment Authorization,'' and adding in its

place the phrase ``An employment authorization document''; and

c. Revising in paragraph (b)(14)(iii) the second sentence to read

as follows:

Sec. 245a.4 Adjustment to lawful resident status of certain nationals

of countries for which extended voluntary departure has been made

available.

* * * * *

(b) * * *

(14) * * *

(iii) * * * The alien will be required to return to the appropriate

INS office, surrender the I-688A or employment authorization document

previously issued, and obtain Form I-688, Temporary Resident Card,

authorizing employment and travel abroad.

* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

21. The authority citation for part 274a continues to read as

follows:

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

Sec. 274a.12 [Amended]

22. In Sec. 274a.12 paragraph (c)(10), in the first sentence is

amended by removing the phrase ``, if the alien establishes the

economic need to work''.

23. In Sec. 274a.13, paragraph (a) is revised to read as follows:

274a.13 Application for employment authorization.

(a) General. Aliens authorized to be employed under

Sec. 274a.12(a)(3)-(8) and (10)-(13) must file an Application for

Employment Authorization (Form I-765) in order to obtain documentation

evidencing this fact.

(1) Aliens who may apply for employment authorization under

Sec. 274a.12(c) of this part, except for those who may apply under

Sec. 274a.12(c)(8), shall file a Form I-765 with the director having

jurisdiction over applicant's residence, or the director having

jurisdiction over the port of entry at which the alien applies, or with

such other Service office as the Commissioner may designate. The

approval of applications filed under Sec. 274a.12(c) of this part,

except for Sec. 274a.12(c)(8), shall be within the discretion of the

director or such other officer as the Commissioner may designate. Where

economic necessity has been identified as a factor, the alien must

provide information regarding his or her assets, income, and expenses

in accordance with instructions on Form I-765.

(2) An initial Application for Employment Authorization (Form I-

765) for asylum applicants under 274a.12(c)(8) of this part shall be

filed in accordance with instructions on or attached to Form I-765 with

the appropriate Service Center or with such other Service office as the

Commissioner may designate. The applicant also must submit a copy of

the underlying application for asylum or withholding of deportation,

together with evidence that the application has been filed in

accordance with Secs. 208.3 and 208.4 of this chapter. An application

for an initial employment authorization or for a renewal of employment

authorization filed in relation to a pending claim for asylum shall be

adjudicated in accordance with Sec. 208.7 of this chapter. An

application for renewal or replacement of employment authorization

submitted in relation to a pending claim for asylum, as provided in

Sec. 208.7 of this chapter, shall be filed, with fee or application for

waiver of such fee, in accordance with the instructions on or attached

to Form I-765 with the appropriate Service Center or with such other

Service office as the Commissioner may designate.

* * * * *

Dated: May 1, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-11058 Filed 5-2-95; 8:45 am]

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