[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46534-46537]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 96-22426]


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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

[[Page 46536]]

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.

* * * * *

------------------------------------------------------------------------
                                Edition                                 
          Form No.               date                  Title            
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
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]
BILLING CODE 4410-10-M