Nonimmigrant Classes; NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, NATO-7; Control of Employment of Aliens [63 FR 32113] [FR 46-98]

DOCUMENT NUMBER: FR 46-98

FEDERAL REGISTER CITE: 63 FR 32113

DATE OF PUBLICATION: June 12, 1998

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

8 CFR Parts 214 and 299

[INS No. 1328-98]

RIN 1115-AB52

Nonimmigrant Classes; NATO-1, NATO-2, NATO-3, NATO-4, NATO-5,

NATO-6, NATO-7; Control of Employment of Aliens

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the regulation of the Immigration and Naturalization Service (Service) governing employment authorization procedures for certain dependents of principal aliens admitted into the United States as representatives, officials, and employees of the North Atlantic Treaty Organization (NATO). This amended regulation is necessary to provide procedures that recognize the significant diplomatic and international considerations involved in NATO matters and to expand and secure employment opportunitie s on the basis of reciprocity for dependents of United States military personnel and certain Department of Defense (Defense) civilian personnel stationed in NATO member countries.

EFFECTIVE DATE: This rule is effective August 11, 1998.

FOR FURTHER INFORMATION CONTACT: Katharine Auchincloss-Lorr, Adjudications Officer, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, Telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

On February 7, 1994, the Service published a proposed rule in the Federal Register at 59 FR 5533 for the purpose of revising the regulations at 8 CFR 214.2(s) governing employment authorization procedures for certain dependents of principal nonimmigrant aliens admitted to the United States as employees, officials, and representatives of NATO member countries and classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 nonimmigrants. In recognition of the diplomatic and international concerns involved in NATO matters, the proposed rule paralleled to the extent possible existing re gulations providing employment authorization procedures for dependents of foreign government diplomats, officials, and employees assigned to official duty in the United States and classified as A-1 and A-2 nonimmigrants and their A-3 servants.

Although public comments were solicited, the Service received none. This final rule is identical to the proposed rule except as discussed in the section of the preamble entitled Changes from the proposed rule. The Department of State (State), Defense, and the Office of NATO's Supreme Allied Commander, Atlantic (SACLANT) have collaborated closely with the Service in developing this rule.

This final rule applies to certain dependents of NATO military personnel, who typically serve a 3-year tour-of-duty with SACLANT, the major NATO command headquarters in Norfolk, Virginia. It also applies to: (1) Certain dependents of NATO civilian employees and officials who work at SACLANT for extended periods; and (2) certain dependents of NATO personnel stationed in other locations in the United States.

This final rule is being published in order to expand and secure employment opportunities on the basis of reciprocity for dependents of United States military personnel and certain Defense civilian personnel stationed in NATO member countries. All parties which collaborated in the drafting of this rule agree that expanding employment opportunities in the United States for NATO-1 through NATO-6 dependents will further this goal. The previous regulation enabled a dependent of a NATO principal nonimmigrant to apply for employment authorization in the United States only if he or she were covered under the terms of a bilateral agreement. (See 8 CFR 214.2(s)(3))

This final rule expands eligibility to apply for employment authorization to certain dependents of NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 nonimmigrants covered by the terms of de facto arrangements. A de facto arrangement exists when the United States Government determines that a foreign country allows appropriate employment "on the local economy" for certain dependents of Untied States Government personnel assigned to official duty in that foreign country. Based on that determination, certain dependents of foreign government personnel assigned to official duty in the United States may apply for employment authorization reciprocally. This final rule provides for such benefits to the extent that de facto privileges are continued or established in NATO member states for dependents of United States military personnel and certain Defense civilian personnel.

This final rule recognizes the importance to United States families of the freedom to work "on the economy" abroad. This regulation attempts to alleviate the stresses on military family life occasioned by the high cost of living in some countries where United States personnel are stationed and the limited number of jobs available on United States bases abroad, coupled with household moves every few years which disrupt a dependent's career and which are exacerbated if a dependent is barred from employment ov erseas.

This final rule parallels, as much as possible, the regulations governing "A" and "G" nonimmigrants. For example, the NATO-7 classification contains periods for admission and extension of stay that are parallel to the A-3 classification. The definitions used (for example, of the words "dependent" and " de facto ") also parallel the definitions used in those regulations. Like the "A" and "G" regulations, this regulation extends the period for dependent employment authorization up to 3 years and requires that NATO dependents must pay taxes and Social Security on their earnings.

Similarly, like the "A" and "G" regulations, the regulations at 8 CFR 214.2(s)(2)(v) and (5)(vi) authorizes NATO dependent employment procedures for sons and daughters who are physically or mentally disabled to the extent that they cannot adequately care fore themselves or cannot establish, maintain, or reestablish their own households.

Effect of Engaging in Unauthorized Employment

The Service is responsible for enforcing the requirements of section 274A of the Act (employer sanctions). Employers who knowingly hire or knowingly continue to employ unauthorized aliens are subject to civil monetary penalties under section 274A of the Act. Like "A" and "G" nonimmigrants, NATO aliens may not engage in employment outside the scope of their specific authorization. NATO principal aliens may work only for NATO in accordance with 8 CFR 274a.12(b)(17). (For the purpose of that section, employmen t by NATO includes employment by a NATO Member State.) NATO dependents, in turn, may engage in only the specific employment authorized by an approved application filed in accordance with 8 CFR 214.2(s)(5).

The Operations Instructions for "A" and "G" nonimmigrants provide that, when it comes to the attention of the Service that an "A" or "G" alien is engaged in unauthorized employment, the Service shall notify the employer and the alien that the employment is unauthorized. See OI 214.2(a)(10) and (g)(10). Such procedures shall now apply to NATO aliens who engage in unauthorized employment as well.

In this regard, as in the case of an "A" and "G" alien, if a NATO alien is engaged in unauthorized employment, the local Service office will create an A-file and a full report documenting all aspects of the unauthorized employment, with the details provided in the Operating Instructions for "A" and "G" aliens. This report will be forwarded expeditiously through Service channels to Headquarters, where it will be forwarded to the Office of the Secretary of Defense. Subsequently, if Defense notifies the Servic e in writing that the alien no longer is entitled to NATO status, the Service may initiate appropriate action, including removal proceedings, on the basis of the unauthorized employment. If, however, Defense notifies the Service in writing that it continues to recognize the alien as entitled to NATO classification, the Service will be precluded from taking removal action against the alien as long as the alien remains in NATO status. However, the alien's unauthorized employment shall be considered as a viola tion of status under 8 CFR 214.1(e). Therefore, applications for change of nonimmigrant classification or adjustment of status by a NATO alien who has engaged in unauthorized employment are deniable based on the alien's violation of status.

Changes From the Proposed Rule

8 CFR 214.2(s)(10) and 8 CFR 274a.12(c)(7)

The paragraph of the proposed rule at 8 CFR 214.2(s)(10) discussed dependents of NATO-7 principal nonimmigrants. The regulation at 8 CFR 214.2(a)(9) governing "A" nonimmigrants precludes employment by A-3 dependents. To ensure conformity with the regulations for "A" nonimmigrants, the proposed rule sought to amend 8 CFR 274a.12(c)(7) to eliminate future grants of employment authorization for NATO-7 dependents, but would have allowed those NATO-7 dependents currently with employment authorization to continue until the expiration of such authorization. The Service has determined not to amend 8 CFR 274a.12(c)(7) at this time in order to address all issues relating to employment authorization in a separate regulation on that subject. Accordingly, proposed 8 CFR 214.2(s)(10) has also been deleted. Current 8 CFR 274a.12(c)(7) continues to authorize NATO dependent employment for all NATO 1-7 dependents only upon issuance of a Service employment authorization document (EAD). NATO-7 dependents with EADs will continue to be work authorized until the expiration of the EAD, but this final rule does not authorize the Service to issue new EADs to NATO-7 dependents.

This rule also eliminates a sentence in 8 CFR 214.2(s)(2)(iv) in the proposed rule which referenced State's advice that the bilateral agreements with Canada, Denmark, Norway, and France permit the employment of unmarried sons and daughters under the age of 25 in full-time attendance at post-secondary educational institutions. These are the four countries covered by such agreements at present, but it is unnecessary to list them in the regulation.

This final rule also eliminates references to any jurisdictional immunities because NATO personnel enjoy no such immunities by virtue of the NATO treaties.

Use of Form I-566

The requirement in the proposed rule, at 8 CFR 214.2(s)(5), Application procedures, that a dependent applicant for employment authorization submit a letter certified by SACLANT or Defense, is replaced in this final rule by the requirement to submit a completed revised Form I-566, Inter-Agency Record of Individual Requesting Change/Adjustment to, or from, "A" or "G" Status; or requesting "A" or "G" Dependent Employment Authorization. The revised Form I-566 is implemented with the publication of this regulati on.

Previously, Form I-566 was used exclusively by both the Service and State in adjudicating applications relating to diplomats, officials, and representatives of foreign governments and international organizations in "A" and "G" nonimmigrant classification; it was not used for NATO-related purposes. As revised, Form I-566 includes provisions for identifying the NATO dependent applicant for employment authorization and the principal NATO nonimmigrant from whom the dependent's status is derived. NATO will provi de direct certification of requests by NATO dependents for employment authorization on the revised Form I-566, just as State provides direct certification of such requests by dependents of "A" and "G" nonimmigrants. Use of a standard Form I-566, rather than certification letters, ensures that the Service adjudication can proceed uniformly and efficiently, without delay occasioned by lack of essential information. Use of Form I-566 also ensures the objective of this regulation to achieve uniformity with the employment application procedures available for "A" and "G" nonimmigrants.

It should be emphasized that, under this rule, Form I-566 may not be used for other NATO-related purposes, such as change of status to a NATO classification or adjustment to lawful permanent residence. Nonimmigrant aliens in the United States cannot change into NATO classification by means of an application to the Service; such classification is secured from NATO and demonstrated by the personal identity card issued by the sending state of the individual or collective movement order. The exemption from pass port and visa requirements provided in 8 CFR 235.1(c) and in 22 CFR 41.1 (d) and (e) (see also the Foreign Affairs Manual at 41.1, Note 1 and 2) for armed services personnel of NATO members does not extend to the dependents of such members or the members of a civilian component and their dependents. NATO aliens seeking to adjust status must use the Form I-485. Requests by NATO nonimmigrants to change to another nonimmigrant status or to adjust to lawful permanent residence will continue to be handled as rou tine nonimmigrant matters, without use of Form I-566 or any certification of NATO review on that form prior to INS adjudication.

Reflecting the decision to require a certified Form I-566 rather than a certification letter, much of the language at paragraph (5) of the proposed regulation has been deleted. The final regulation simply requires the applicant to provide the information required by the Form I-566.

8 CFR 214.2(s)(4)

The proposed rule stated that the applicability of a formal bilateral agreement shall be based on the NATO Member State which employs the principal alien and not on the nationality of the principal alien or dependent. The applicability of an informal de facto arrangement shall be based on the NATO Member State which employs the principal alien, and the principal alien must also be a national of the NATO Member State which employs him or her in the United States. Employees of NATO (SACLANT) receive dependent employment privileges based upon the nationality of the principal NATO employee. This arrangement has been retained, and clarified, in the final rule.

Other Changes

In addition, the Service has made a number of non-substantive corrections and improvements to the proposed rule which are not specifically discussed in this Supplementary Information, such as clarifying the description of NATO and describing more thoroughly the NATO-1 through NATO-5 categories in the background.

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 certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule primarily affects applications for employment which can only be filed by a limited number of individuals who are NATO dependents.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export products.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, § 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Exeucitive Order 12612

The regulations proposed herein 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 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display of Control Numbers.