Introduction of New Employment Authorization Document

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 210, 245a, 264, 274a and 299

[INS No. 1399 E-96]

RIN 1115-AB73

Introduction of New Employment Authorization Document

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: The Immigration and Naturalization Service (Service) is

publishing a final rule introducing a more secure Employment

Authorization Document (EAD), Form I-766. The

[[Page 46535]]

Service will begin issuing Form I-766 on or after October 4, 1996. This

rule will confer authority for INS to begin issuing Form I-766 to

certain classes of aliens as evidence of authorization to work

temporarily in the United States. Form I-766 may be used by employees

and employers for purposes of employment verification eligibility

requirements on the Service Form I-9. No action is necessary for those

aliens who have valid evidence of employment authorization on Service

Forms I-688A and I-688B.

EFFECTIVE DATE: October 4, 1996.

FOR FURTHER INFORMATION CONTACT:

MayBurn DeBoe, Senior Immigration Examiner, Immigration and

Naturalization Service, Adjudications and Nationality Division, 425 I

Street NW., room 3214, Washington, DC. 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: The Service published a supplemental

proposed rule (INS No. 1399S-94) in the Federal Register at 60 FR

32472-32477 on June 22, 1995. That rule, among other things, proposed

to introduce a new, more secure Employment Authorization Document

(EAD), Form I-766. This final rule introduces Form I-766 as a

designated employment authorization document and, for Form I-688A and

I-688B Employment Authorization Document holders, evidence of alien

registration; while also amending 8 CFR parts 210 and 245a to reflect

revised document numbers.

The Service will begin to issue Form I-766 on October 4, 1996. At

this time, the Service is publishing in final form those provisions

which will allow for the use of Form I-766. Form I-766 will eventually

replace two existing Employment Authorization Documents, Forms I-688A

and I-688B. These provisions were contained in the proposed document

reduction rule (INS No. 1399-92) published on November 23, 1993, at 58

FR 61846-61850, and the supplemental proposed rule (INS No. 1399S-94)

published on June 22, 1995. The Service has elected to publish only

these select provisions in final form at this time. The remainder of

the provisions contained in the proposed document reduction rule and

supplemental proposed rule will be published in final form at a later

date.

Centralized EAD Production

The Service will centralize I-766 production at the service

centers. The Service has determined that utilizing state-of-the-art

technology at one or more of its service centers will enable the

Service to produce a more secure EAD which will benefit employers,

aliens who have been granted employment authorization, and the Service

as well.

Currently, more than half of all EAD applications are filed and

processed at the service centers through direct mail, and the Service

plans to shift all remaining EAD applications to direct mail as a new

production system becomes available in the service centers. As noted in

the proposed supplemental rule, direct mail is a Service program which

allows the public to file certain applications and petitions for

benefits under the Immigration and Nationality Act (Act), as amended,

at service centers instead of field offices. This centralization has

improved inventory control, data integrity, and overall service.

Introduction of Form I-766

In the proposed rule published November 23, 1993, the Service

proposed amending 8 CFR parts 210 and 245a to reflect the eventual

replacement of Form I-688A with Form I-766. The Service will amend

those parts to include specific references to the form number of

Service-issued employment authorization documents (e.g., Form I-688B

and Form I-766). In addition, current language in sections under 8 CFR

parts 210 and 245a provide for employment authorization in 6-month

increments. This rule amends those sections to make them consistent

with language in 8 CFR 274a.12(c) which provides for employment

authorization in increments not to exceed 1 year.

Related Regulatory and Process Changes

To clarify the regulatory provisions for legalization applicant

work authorization in 8 CFR 274a.12, the Service is adding paragraphs

to (c) (20) and (22) to include these legalization groups as classes of

aliens who must apply for employment authorization while their

applications are pending before the Service. The addition of these two

(2) paragraphs will permit the Service to indicate on the EAD, the

different terms and conditions of legalization applicants under

sections 210 and 245A of the Act.

In addition, since Form I-688A, which is issued to legalization

applicants, is designated by existing regulation as evidence of alien

registration, 8 CFR part 264 will be amended to permit Form I-766,

which eventually will replace Form I-688A, to be used as evidence of

alien registration. Also, because an employment authorization document

is considered an alien registration document for purposes of identity

and employment eligibility (List A) of the Form I-9, the Service is

amending part 264 to add Forms I-688B and I-766.

Elimination of Certain Service-Issued Paper Documents

In the supplemental proposed rule published on June 22, 1995, the

Service notified the public of its intent to eliminate from circulation

an unknown number of paper work authorization documents issued prior to

June 1, 1987. These pre-1987 paper work authorization documents neither

adhered to uniform standards for issuance and recordkeeping nor

contained security features. The Service, by its own regulation,

intended that these paper documents be terminated automatically on June

1, 1988. However, the Service was not in a state of readiness to issue

a secure employment authorization document on June 1, 1988 and

published in the Federal Register a stay and suspension of this

paragraph of its regulation. The Service is now prepared to issue a

highly secure document, Form I-766. Accordingly, effective December 31,

1996, consistent with the provisions of 8 CFR 274a.14(c), this rule

will lift the stay on the expiration of Service-issued paper work

permits issued before June 1, 1987, that was noticed at 53 FR 20086-87

on June 1, 1988. The stay was imposed ``to promote clarity in the

issuance of employment authorization documents'' while the Service

investigated technologies for a secure, standardized employment

authorization system. The technology behind Form I-766 represents an

important step towards such a system. Holders of such documents will be

required to obtain the new, secure Form I-766, through the prescribed

process for filing an Application for Employment Authorization (Form I-

765. This provision applies exclusively to paper documents evidencing

periods of temporary employment authorization issued prior to June 1,

1987. Although the Service does not know the precise number of aliens

holding these pre-1987 paper work permits, it is reasonable to expect

that most such aliens have applied for immigration benefits under the

legalization program enacted in 1986 or otherwise sought immigration

benefits at which time the question of employment authorization would

have been revisited.

Comments

Many of the comments received on the proposed supplement relate to

sections that are not the subject of this final rule. Those will be

addressed when the Service publishes the final

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document reduction rule. One commenter supported the eventual

elimination of the Form I-688B in conjunction with Form I-688A with the

introduction of the Form I-766. However, another commenter requested

that prompt adjudication of EAD applications be ensured. The commender

expressed concern that the processing time for Form I-766 will further

increase overall adjudication and processing time. The commenter also

encouraged the Service to engage in an aggressive informational

campaign to make affected aliens aware of the need to eventually

replace their EADs and to advise employers about the proposed changes

so that inadvertent discrimination and verification mistakes do not

occur.

The Service is prepared to institute an aggressive informational

and educational campaign advising both employers and employees of the

introduction of the Form I-766. The Form I-766 is a more secure card

and is being introduced by the Service as a means to ensure quicker

processing time, as well as greater uniformity and consistency among

EADs. It is anticipated that the new EAD will ultimately result in less

confusion for the employment community.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. Sec. 605(b)),

has reviewed this regulation and, by approving it, certifies that the

rule will not have a significant economic impact on a substantial

number of small entities. Employers, including small entities, are

required to comply with existing employment verification eligibility

requirements under the Act. Introduction of the more secure EAD, Form

I-766, imposes no such additional requirement. Rather, introduction of

the more secure EAD and centralizing its production are intended to

streamline the current process and simplify existing employment

verification eligibility requirements imposed on employers.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

and Naturalization Service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review, and has been reviewed by the Office of Management and Budget

(OMB). As noted in the supplementary section of this rule, this action

is intended to streamline and simplify compliance with the employment

eligibility verification requirements of the Act.

Executive Order 12612

This regulation 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 responsibility 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.

List of Subjects

8 CFR Part 210

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 245a

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 264

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

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

Regulations is amended as follows:

PART 210--SPECIAL AGRICULTURAL WORKERS

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

follows:

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

2. In Sec. 210.4 paragraphs (b) (2) and (3) are revised to read as

follows:

Sec. 210.4 Status and benefits.

* * * * *

(b) * * *

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

temporary resident status. Permission to travel abroad and to accept

employment will be granted to the applicant after an interview has been

conducted in connection with a nonfrivolous application at a Service

office. If an interview appointment cannot be scheduled within 30 days

from the date an application is filed at a Service office,

authorization to accept employment will be granted, valid until the

scheduled appointment date. Employment authorization, both prior and

subsequent to an interview, will be restricted to increments not

exceeding 1 year, pending final determination on the application for

temporary resident status. If a final determination has not been made

prior to the expiration date on the Employment Authorization Document

(Form I-766, Form I-688A or Form I-688B) that date may be extended upon

return of the employment authorization document by the applicant to the

appropriate Service office. Persons submitting applications who

currently have work authorization incident to status as defined in

Sec. 274a.12(b) of this chapter shall be granted work authorization by

the Service effective on the date the alien's prior work authorization

expires. Permission to travel abroad shall be granted in accordance

with the Service's advance parole provisions contained in Sec. 212.5(e)

of this chapter.

(3) Employment and travel authorization upon grant of temporary

resident status. Upon the granting of an application for adjustment to

temporary resident status, the service center will forward a notice of

approval to the applicant at his or her last known address and to his

or her qualified designated entity or representative. The applicant may

appear at any Service office, and upon surrender of the previously

issued Employment Authorization Document, will be issued Form I-688,

Temporary Resident Card. An alien whose status is adjusted to that of a

lawful temporary resident under section 210 of the Act has the right to

reside in the United States, to travel abroad (including commuting from

a residence abroad), and to accept employment in the United States in

the same manner as aliens lawfully admitted to permanent residence.

* * * * *

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

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

follows:

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

4. In Sec. 245a.2 paragraph (n)(2) heading, and paragraphs

(n)(2)(ii) and (n)(3) are revised to read as follows:

Sec. 245a.2 Application for temporary residence.

* * * * *

[[Page 46537]]

(n) * * *

(2) Employment authorization prior to the granting of temporary

resident status.

* * * * *

(ii) If an interview appointment cannot be scheduled within 30 days

from the date an application is filed at a Service office,

authorization to accept employment will be granted, valid until the

scheduled appointment date. Employment authorization, both prior and

subsequent to an interview, will be restricted to increments of 1 year,

pending final determination on the application for temporary resident

status. If a final determination has not been made prior to the

expiration date on the Employment Authorization Document (Form I-766,

Form I-688A or Form I-688B), that date may be extended upon return of

the employment authorization document by the applicant to the

appropriate Service office.

(3) Employment and travel authorization upon grant of temporary

resident status. Upon the granting of an application for adjustment to

temporary resident status, the service center will forward a notice of

approval to the applicant at his or her last known address and to his

or her qualified designated entity or representative. The applicant may

appear at any Service office and, upon surrender of the previously

issued Employment Authorization Document, will be issued Form I-688,

Temporary Resident Card, authorizing employment and travel abroad.

* * * * *

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED

STATES

5. The authority citation for part 264 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305.

6. In Sec. 264.1 paragraph (b) is amended by adding the entries for

``Form I-766'' and ``Form I-688B'' to the listing of forms, in proper

numerical sequence, to read as follows:

Sec. 264.1 Registration and fingerprinting.

* * * * *

(b) * * *

Form No. and Class

* * * * *

I-688B, Employment Authorization Document.

I-766, Employment Authorization Document.

* * * * *

PART 274A--CONTROL OF EMPLOYMENT OF ALIENS

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

follows:

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

8. Section 274a is amended by revising paragraph (b)(1)(v)(A)(6)

and removing and reserving paragraphs (b)(1)(v)(A)(7) and

(b)(1)(v)(A)(10) to read as follows:

Sec. 274a.2 Verification of employment eligibility.

* * * * *

(b) * * *

(1) * * *

(v) * * *

(A) * * *

(6) An unexpired Employment Authorization Document issued by the

Immigration and Naturalization Service which contains a photograph,

Form I-766; Form I-688, Form I-688A, or Form I-688B;

(7) [Reserved]

* * * * *

(10) [Reserved]

* * * * *

9. In Sec. 274a.12, new paragraphs (c)(20) and (c)(22) are added,

to read as follows:

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

* * * * *

(c) * * *

(20) Any alien who has filed a completed legalization application

pursuant to section 210 of the Act (and part 210 of this chapter).

Employment authorization shall be granted in increments not exceeding 1

year during the period the application is pending (including any period

when an administrative appeal is pending) and shall expire on a

specified date.

* * * * *

(22) Any alien who has filed a completed legalization application

pursuant to section 245A of the Act (and part 245a of this chapter).

Employment authorization shall be granted in increments not exceeding 1

year during the period the application is pending (including any period

when an administrative appeal is pending) and shall expire on a

specified date.

* * * * *

10. In 274a.14 paragraphs (c)(1) and (c)(2) are revised to read as

follows:

Sec. 274a.14 Termination of employment authorization.

* * * * *

(c) Automatic termination of temporary employment authorization

granted prior to June 1, 1987--(1) Temporary employment authorization

granted prior to June 1, 1987, pursuant to 8 CFR 274a.12(c)

(Sec. 109.1(b) contained in the 8 CFR edition revised as of January 1,

1987), shall automatically terminate on the date specified by the

Service on the document issued to the alien, or on December 31, 1996,

whichever is earlier. Automatic termination of temporary employment

authorization does not preclude a subsequent application for temporary

employment authorization.

(2) A document issued by the Service prior to June 1, 1987, that

authorized temporary employment authorization for any period beyond

December 31, 1996, is null and void pursuant to paragraph (c)(1) of

this section. The alien shall be issued a new employment authorization

document upon application to the Service if the alien is eligible for

temporary employment authorization pursuant to 274A.12(c).

* * * * *

PART 299--IMMIGRATION FORMS

11. The authority citation for part 299 continues to read as

follows:

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

12. Section 299.1 is amended by adding the entry for ``Form I-766''

in proper numerical sequence to the listing of forms, to read as

follows:

Sec. 299.1 Prescribed forms.

* * * * *

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Edition

Form No. date Title

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* * * * *

I-766....................... 01-03-96 Employment Authorization

Document.

* * * * *

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Dated: May 20, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-22426 Filed 9-3-96; 8:45 am]

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