Introduction of New Employment Authorization Document [61 FR 46534] [FR 25-96]

DOCUMENT NUMBER: FR 25-96

FEDERAL REGISTER CITE: 61 FR 46534

DATE PUBLISHED: September 4, 1996

BILLING CODE 4410-10-M

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.

SUMMARY: The Immigration and Naturalization Service (Service) is publishing a final rule introducing a more secure Employment Authorization Document (EAD), Form I-766. The 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 reflec t 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, 199 5. 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 sectio ns 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 w ill 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 For m 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 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. § 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.