Federal Register, Volume 85 Issue 224 (Thursday, November 19, 2020)

[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Proposed Rules]
[Pages 74196-74253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25473]

[[Page 74195]]

Vol. 85

Thursday,

No. 224

November 19, 2020

Part VIII

Department of Homeland Security

-----------------------------------------------------------------------

8 CFR Parts 106, 241 and 274a

Employment Authorization for Certain Classes of Aliens With Final
Orders of Removal; Proposed Rule

Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 /
Proposed Rules

[[Page 74196]]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 241 and 274a

[CIS No. 2653-19; DHS Docket No. USCIS-2019-0024]
RIN 1615-AC40

Employment Authorization for Certain Classes of Aliens With Final
Orders of Removal

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Homeland Security (DHS) is proposing to
eliminate employment authorization eligibility for aliens who have
final orders of removal but are temporarily released from custody on an
order of supervision with one narrow exception. DHS proposes to
continue to allow employment authorization for aliens for whom DHS has
determined that their removal is impracticable because all countries
from whom travel documents have been requested have affirmatively
declined to issue a travel document and who establish economic
necessity. DHS intends for this rule to reduce the incentive for aliens
to remain in the United States after receiving a final order of removal
and to strengthen protections for U.S. workers.
DHS is also proposing to clarify that aliens who have been granted
a deferral of removal based on the United States' obligations under the
United Nations (U.N.) Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) are similarly
situated to aliens granted withholding of removal under the Immigration
and Nationality Act (INA) and regulations implementing CAT, in that
they cannot be removed to the country in question while the order
deferring their removal is in place. As such, DHS is proposing to treat
aliens granted CAT deferral of removal as employment authorized based
upon the grant of deferral of removal.

DATES: Written comments on this proposed rulemaking must be submitted
on or before December 21, 2020. Comments on the collection of
information (see Paperwork Reduction Act section) must be received on
or before January 19, 2021. Comments on both the proposed rulemaking
and the collection of information received on or before December 21,
2020 will be considered by DHS and USCIS. Only comments on the
collection of information received between December 21, 2020 and
January 19, 2021 will be considered by DHS and USCIS. Note: Comments
received after December 21, 2020 on the proposed rulemaking rather than
those specific to the collection of information will not be considered
by DHS and USCIS.

ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2019-0024,
through the Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. Due to COVID-19, USCIS is also not
accepting mailed comments at this time. If you cannot submit your
comment by using http://www.regulations.gov, please contact Samantha
Deshommes, Chief, Regulatory Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, by telephone at (240) 721-3000 for alternate
instructions.

FOR FURTHER INFORMATION CONTACT: Michael J. McDermott, Chief, Security
and Public Safety Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, MD, Camp Springs 20746; Telephone (240)
721-3000.

SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:

Table of Contents

I. Public Participation
II. Executive Summary
A. Major Provisions of the Regulatory Action
B. Summary of Costs, Benefits, and Transfer Payments
III. Purpose of the Proposed Rule
A. Enforcement Priorities
B. Strengthening Protections for U.S. Workers
C. Exception to Employment Authorization Bars
IV. Background
A. Legal Authority
B. Detention and Release of Aliens Ordered Removed
C. Repatriation of Aliens Ordered Removed
D. Withholding of Deportation or Removal Under the INA and
Regulations Implementing CAT and Deferral of Removal Under
Regulations Implementing CAT
E. Employment Authorization
F. Biometric Submission
V. Discussion of the Proposed Rule
A. Eligibility for Employment Authorization for Aliens on Orders
of Supervision
B. USCIS Evidentiary Requirements
C. Biometric Submission and Criminal History
D. Aliens Granted Deferral of Removal Under the Regulations
Implementing CAT
E. Effective Date of the Final Rule
F. Additional Amendments
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
1. Summary
2. Background and Purpose of the Proposed Rule
3. Population
4. Costs and Benefits of the Proposed Rule
B. Regulatory Flexibility Act (RFA)
C. Congressional Review Act (CRA)
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 Consultation and Coordination With
Indian Tribal Governments
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act (PRA)
K. Signature

Table of Abbreviations

AEDPA--Anti-Terrorism and Effective Death Penalty Act
ASC--Application Support Center
BAHA--Buy American and Hire American (Executive Order 13788)
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CAT--Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CFR--Code of Federal Regulations
DCAT--Deferral of Removal Under the Regulations Implementing the
Convention Against Torture
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
DOL--U.S. Department of Labor
DOS--Department of State
E.O.--Executive Order
EAD--Employment Authorization Document
EOIR--Executive Office for Immigration Review
E-Verify--Employment Eligibility Verification System
FARRA--Foreign Affairs Reform and Restructuring Act of 1988
FBI--The Federal Bureau of Investigation
Form I-9--Employment Eligibility Verification
Form I-765--Application for Employment Authorization

[[Page 74197]]

Form I-765WS--Form I-765, Employment Authorization Worksheet
FY--Fiscal Year
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ--Immigration Judge
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
LCA--Labor Condition Application
LPR--Lawful Permanent Resident
MOU-Memorandum of Understanding
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
RFE--Request for Evidence
Secretary--Secretary of Homeland Security
SSA--Social Security Administration
TLC--Temporary Labor Certification
TNC--Tentative Non-Confirmation
U.N.--United Nations
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

All interested parties are invited to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, legal, environmental, or federalism effects
that might result from this proposed rule. Comments must be submitted
in English, or an English translation must be provided. Comments that
will provide the most assistance to U.S. Citizenship and Immigration
Services (USCIS) in implementing these changes will reference a
specific portion of the proposed rule, explain the reason for any
recommended change, and include data, information, or authority that
supports such recommended change.
Instructions: If you submit a comment, you must include the agency
name and the DHS Docket No. USCIS-2019-0024 for this rulemaking.
Regardless of the method used for submitting comments or material, all
submissions will be posted, without change, to the Federal eRulemaking
Portal at http://www.regulations.gov, and will include any personal
information you provide. Therefore, submitting this information makes
it public. You may wish to consider limiting the amount of personal
information that you provide in any voluntary public comment submission
you make to DHS. DHS may withhold information provided in comments from
public viewing that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy and Security Notice that is available via the link in the
footer of http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2019-0024. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.

II. Executive Summary

DHS seeks to align its discretionary authority to grant employment
authorization to aliens ordered removed and temporarily released on
orders of supervision with its current immigration enforcement
priorities, which include the prompt removal of aliens who have
received a final order of removal from the United States,\1\ and the
Administration's efforts to strengthen protections for U.S. workers.
DHS is proposing to modify its regulations in the following areas:
---------------------------------------------------------------------------

\1\ This proposed rule does not affect DHS's authority to
release aliens from detention or to remove aliens from the United
States pursuant to sections 235, 236, 238, 240, and 241 of the INA,
8 U.S.C. 1225, 1226, 1228, 1229a, and 1231.
---------------------------------------------------------------------------

Employment authorization eligibility for aliens
temporarily released on orders of supervision: DHS proposes to
eliminate eligibility for discretionary employment authorization under
8 CFR 274a.12(c)(18) for aliens who have final orders of removal and
are temporarily released from custody on orders of supervision pending
removal except for aliens for whom DHS has determined that their
removal is impracticable because all countries from whom DHS requested
travel documents have affirmatively declined to issue such documents.
DHS intends to require such aliens to establish economic necessity for
employment during the period of the order of supervision.\2\ Consistent
with 8 CFR 274a.12(e), USCIS would use the Federal Poverty Guidelines
under Title 45 of the U.S. Code to determine whether there is an
economic necessity for employment authorization. Additionally, DHS
proposes to expand the current nonexhaustive list of factors it
considers when adjudicating an application for employment authorization
for aliens temporarily released on an order of supervision to include:
(1) The alien's compliance with the order of supervision conditions and
(2) the alien's criminal history, including but not limited to any
criminal arrests, charges, or convictions subsequent to the alien's
release from custody on an order of supervision.
---------------------------------------------------------------------------

\2\ Currently, economic necessity is only a discretionary
factor. See 8 CFR 274a.12(c)(18)(i).
---------------------------------------------------------------------------

Additional requirements for renewal employment
authorization for aliens temporarily released on orders of supervision:
DHS further proposes to allow aliens temporarily released on an order
of supervision who apply for a renewal of their employment
authorization to have it renewed only if the alien: (1) Continues to
meet the exception noted above, (2) demonstrates economic necessity,
(3) establishes that he or she warrants a favorable exercise of
discretion, and (4) establishes that he or she is employed by a U.S.
employer who is a participant in good standing in DHS's employment
eligibility verification system (E-Verify) by providing the U.S.
employer's name as listed in E-Verify and the employer's E-Verify
Company Identification Number. An alien who fails to establish that he
or she is employed by an E-Verify employer would not be eligible for a
renewal EAD. DHS will consider an E-Verify employer to be a participant
in good standing if, at the time of filing of the application for
renewal of employment authorization, the employer: (1) Has enrolled in
E-Verify with respect to all hiring sites in the United States that
employ an alien temporarily released on an order of supervision who has
received employment authorization under this rule; (2) is in compliance
with all requirements of E-Verify, including but not limited to
verifying the employment eligibility of newly hired employees at such
hiring sites; and (3) continues to be a participant in good standing in
E-Verify at any time during the employment of the alien temporarily
released on an order of supervision who has received employment
authorization pursuant to this rule.
Limit the Employment Authorization Document (EAD) validity
period for aliens temporarily released on orders of supervision: DHS
proposes to limit the validity period for an EAD issued under 8 CFR
274a.12(c)(18) (``(c)(18) EADs'') to one year, regardless of whether
the alien seeks an initial or renewal EAD.
Biometrics submission by aliens temporarily released on
orders of supervision: DHS proposes to require that biometrics be
submitted and a biometric services fee be paid for by aliens seeking
discretionary employment authorization under 8 CFR 274a.12(c)(18)
(``(c)(18) EAD applicants''). Currently, all (c)(18) EAD

[[Page 74198]]

applicants submit biometrics to USCIS \3\ to, among other things,
assist in identity verification and facilitate (c)(18) EAD card
production. This rule proposes to codify that requirement and require
that they pay a biometric services fee of $30. See proposed 8 CFR
106.2(a)(32)(i)(C).\4\ In addition, DHS proposes to use biometrics
submitted by (c)(18) EAD applicants to screen for criminal history. See
proposed 8 CFR 241.4(j)(3).
---------------------------------------------------------------------------

\3\ At present, biometrics collection generally refers to the
collection of fingerprints, photographs, and signatures. See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including
fingerprints, photographs, and digital signature) (last visited May
15, 2020).
\4\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 85 FR 46788 (Aug. 3, 2020) (Fee Rule). The Fee Rule
was scheduled to go into effect on October 2, 2020. On September 29,
2020, the U.S. District Court for the Northern District of
California issued a nationwide injunction, which prevents DHS from
implementing the Fee Schedule Final Rule. See, Immigrant Legal
Resource Center v. Wolf, No. 4:20-cv-5883 (N.D. Cal. Sept. 29,
2020). DHS intends to vigorously defend this lawsuit and is not
changing the baseline for this proposed rule as a result of the
litigation.
---------------------------------------------------------------------------

Provide aliens granted deferral of removal under the
regulations implementing the CAT employment authorization based on the
grant of deferral: Finally, DHS proposes to amend its regulations at 8
CFR 274a.12(a)(10) to include aliens who have been granted deferral of
removal based on the regulations implementing the United States'
obligations under the CAT \5\ in the category of aliens who are not
required to apply for employment authorization to work, but will be
recognized as employment authorized based on the grant of deferral of
removal.\6\ Currently, aliens who are granted withholding of removal
under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or CAT under 8
CFR 208.16 and 1208.16, are employment authorized based solely on the
grant of withholding. They are not required to apply for employment
authorization but may obtain an EAD if they wish to have a document
reflecting that they are employment authorized by virtue of the grant
of withholding. However, DHS's regulations do not clearly indicate that
aliens who are granted CAT deferral of removal \7\ fall within the
category of aliens who should be employment authorized based on the
grant of deferral rather than having to apply for employment
authorization like other aliens under 8 CFR 274a.12(c). DHS proposes to
amend the regulations to make this clarification.
---------------------------------------------------------------------------

\5\ See 8 CFR 208.16-208.18 and 1208.16-1208.18.
\6\ If the alien wants a document to reflect that he or she is
employment authorized pursuant to the grant of deferral, the alien
will need to apply for an EAD with USCIS.
\7\ CAT deferral of removal is a form of protection from removal
similar to withholding under the regulations implementing CAT in
that an alien cannot be removed to the country with respect to which
a deferral order is in place.
---------------------------------------------------------------------------

Specify the effective date: DHS proposes to apply changes
made by this rule only to initial and renewal applications filed on or
after the effective date of the final rule. DHS proposes to allow
aliens temporarily released on an order of supervision who are already
employment authorized prior to the final rule's effective date to
remain employment authorized until the expiration date on their EAD,
unless their employment authorization is terminated or revoked earlier
than the expiration date. USCIS would continue processing any pending
application for a replacement EAD received prior to the effective date
and would continue to receive new applications for replacement EADs
because those adjudications are not considered a new grant of
employment authorization but a replacement of an EAD based on a
previously authorized period of employment prior to the effective date
of the final rule.

A. Major Provisions of the Regulatory Action

DHS proposes the following regulatory amendments:
8 CFR 106.2, Fees. DHS proposes to amend 8 CFR
106.2(a)(32)(i) to require that aliens who are subject to a final order
of removal and temporarily released on an order of supervision pay a
$30 biometric services fee in addition to the filing fee for an
application for employment authorization under 8 CFR 274a.12(c)(18).
Several provisions in subpart A of part 241. DHS is
amending 8 CFR 241.4, 241.5, and 241.13 to remove obsolete references
to former Immigration and Naturalization Service (INS) agency titles
and replace them with the appropriate DHS component names. The
amendments also update the section to correctly reflect the DHS
components with authority over orders of supervision and issuance of
EADs. The amendments to 8 CFR 241.4 would also codify requirements for
aliens who are applying for initial and renewal employment
authorization under the (c)(18) category to submit biometrics at an ASC
and pay the associated biometric services fee.
8 CFR 274a.12, Classes of aliens authorized to accept
employment. The amendments to this section clarify that 8 CFR
274a.12(a)(10) covers aliens granted withholding of removal either
based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or on the
regulations implementing U.S. obligations under the CAT. The amendments
to this section also add aliens granted deferral of removal based on
the regulations implementing CAT to the current regulation at 8 CFR
274a.12(a)(10) as aliens who are employment authorized based solely on
the grant of withholding or deferral and are not required to apply for
employment authorization. This section also revises 8 CFR
274a.12(c)(18) to reflect that eligibility for employment authorization
based on a final order of removal and temporary release from custody on
an order of supervision is limited to aliens whose removal is
impracticable because all countries from whom DHS has requested travel
documents have affirmatively declined to issue such documents and who
establish economic necessity.
8 CFR 274a.13, Applications for employment authorization.
This section adds a new paragraph specifically addressing the filing
procedures and evidentiary requirements for aliens temporarily released
from custody on an order of supervision who are seeking an initial EAD
or renewing an EAD, including the new requirements to: (1) Submit the
Form I-765WS, Employment Authorization Worksheet (or successor form),
(2) establish the alien's economic necessity for employment, (3)
provide the E-Verify Company Identification Number for the alien's U.S.
employer that participates in E-Verify and the employer's name as
listed in E-Verify on the application for employment authorization
(renewal applicants only), and (4) submit a copy of their current U.S.
Immigration and Customs Enforcement (ICE) Form I-220B, Order of
Supervision (or successor form), with a copy of the complete Personal
Report Record. The amendments also provide that the validity period for
employment authorization under 8 CFR 274a.12(c)(18) will not exceed
increments of one year.

B. Summary of Costs, Benefits, and Transfer Payments

This proposed rule is estimated to result in a reduction in the
number of aliens on orders of supervision who are eligible for
employment authorization, which could result in lost earnings for those
no longer eligible. This loss of earnings would result in a transfer of
costs from the alien to their support network, including family
members, community groups, non-profits or third-party organizations to
provide for the alien and any dependents. In addition, DHS estimates
increased filing burdens associated with the proposed rule for those
who remain eligible for employment authorization. Employers

[[Page 74199]]

that currently hire workers who would no longer be eligible to renew
under this rule could experience new costs due to employee turnover and
the need to comply with the proposed E-Verify requirement. Finally, the
proposed rule may result in a loss of tax revenue.
Under the proposed rule, DHS anticipates there would be six types
of impacts that DHS can estimate and quantify: (1) Potential lost
earnings for alien workers temporarily released on orders of
supervision who may no longer be eligible for employment authorization;
(2) increased time burden for applicants to submit forms; (3) added
time and costs for applicants to submit biometrics; (4) labor turnover
costs that employers of alien workers with orders of supervision could
incur when their employees' EADs expire and are not renewed; (5) costs
to employers to enroll in and maintain an E-Verify account as a
participant in good standing to retain workers with orders of
supervision who are applying for renewal EADs; and (6) potential
employment tax losses to the Federal Government.
DHS estimates that some aliens with final removal orders and
temporarily released on orders of supervision would be ineligible for
discretionary EADs due to this proposed rule. However, DHS cannot
estimate with precision what the future eligible population would be
because of data constraints and, therefore, relies on a range with an
upper and lower bound. The estimated costs of this proposed rule would
range from a minimum of about $94,868, (annualized 7%) associated with
biometrics and added burdens for relevant filing forms to a maximum of
$1,496,016,941 (annualized 7%) should no replacement labor be found for
aliens on orders of supervision who would be ineligible for employment
authorization under this rule.\8\ The ten-year undiscounted costs would
range from $940,239 to $14,722,941,163. DHS estimates $228,789,887
(annualized 7%) as the maximum decrease in employment tax transfers
from companies and employees to the Federal Government.
---------------------------------------------------------------------------

\8\ DHS estimates some of the costs and benefits of this rule
using the newly published U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, final rule (``Fee Schedule Final Rule''), and
associated form changes, as the baseline. 85 FR 46788 (Aug. 3,
2020). The Fee Schedule Final Rule was scheduled to go into effect
on October 2, 2020. On September 29, 2020, the U.S. District Court
for the Northern District of California issued a nationwide
injunction, which prevents DHS from implementing the Fee Schedule
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend
this lawsuit and is not changing the baseline for this rule as a
result of the litigation. Should DHS not prevail in the Fee Schedule
Final Rule litigation, this rule may reflect understated costs
associated with biometrics fees and overstated benefits associated
with filing Form I-765.
---------------------------------------------------------------------------

Table 1 provides a summary of the proposed regulatory changes and
the estimated impacts of the proposed rule.
BILLING CODE 9111-97-P

[[Page 74200]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.076

[[Page 74201]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.077

[[Page 74202]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.078

[[Page 74203]]

was 7.9 percent.\10\ This is an improvement on April's 14.7 percent
which marked the highest unemployment rate and the largest over-the-
month increase in the history of the series (seasonally adjusted data
are available back to January 1948).\11\ By comparison, the
unemployment rate for September 2019 was 3.5%.\12\ DHS assumes that
during the COVID-19 pandemic, with additional available labor
nationally, companies are more likely to find replacement labor for the
job the alien on an order of supervision would have filled.\13\ Thus,
in the short-run during the pandemic and the ensuing economic recovery,
the lost compensation to EAD applicants as a result of this rule is
likely to mean that the costs of the rule will be lower than they would
otherwise have been. DHS notes that although the pandemic is
widespread, the severity of its impacts varies by locality.
Consequently, it is not clear to what extent the distribution of alien
workers temporarily released on orders of supervision overlaps with
areas of the country that will be more or less impacted by the COVID-19
pandemic. Accordingly, DHS cannot estimate with confidence to what
extent the impacts will be transfers instead of costs.
---------------------------------------------------------------------------

\9\ On March 13, 2020, the President declared that the COVID-19
outbreak in the United States constitutes a national emergency. See
`Proclamation on Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak,' available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
\10\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/archives/empsit_10022020.pdf.
\11\ In April 2020, the unemployment rate increased by 10.3
percentage points to 14.7 percent. Department of Labor, Bureau of
Labor Statistics, The Employment Situation--April 2020. Available
at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
\12\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2019, Employment Situation Summary
Table A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
\13\ The Congressional Budget Office estimates the unemployment
rate is expected to average close to 14 percent during the second
quarter, See: CBO's Current Projections of Output, Employment, and
Interest Rates and a Preliminary Look at Federal Deficits for 2020
and 2021 https://www.cbo.gov/publication/56335 April 24, 2020.
---------------------------------------------------------------------------

DHS's assumption that all applicants with an EAD are able to obtain
employment (discussed in further detail later in the analysis), also
does not reflect impacts from the COVID-19 pandemic. It is not clear
what level of reductions the pandemic will have on the ability of EAD
holders to find jobs (as jobs are less available), or how DHS would
estimate such an impact with any precision given available data.
Consequently, the ranges projected in this analysis regarding lost
compensation are expected to be an overestimate, especially in the
short-run. The range of impacts described by the scenarios above, plus
the consideration of the other costs, are summarized in Table 2 below.

[[Page 74204]]

BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP19NO20.079

[[Page 74205]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.080

In addition, Table 3 presents the prepared accounting statement, as
required by the Office of Management and Budget (OMB) Circular A-4,
showing the costs associated with this proposed regulation. Note that
under costs, the primary estimates provided in the accounting statement
are calculated based on the minimum cost from the scenario that all
aliens temporarily released on orders of supervision are replaced with
other workers and the maximum cost from the scenario that no aliens
temporarily released on orders of supervision are replaced with other

[[Page 74206]]

workers (scenario presented in Tables 2(A) and (B)).
[GRAPHIC] [TIFF OMITTED] TP19NO20.081

[[Page 74207]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.082

III. Purpose of the Proposed Rule

It is the Administration's policy to ensure the prompt removal of
aliens who have been issued a final order of removal. In 2017,
President Trump issued Executive Order (E.O.) 13768, ``Enhancing Public
Safety in the Interior of the United States,'' 82 FR 8799 (Jan. 25,
2017). This E.O. noted that the enforcement of our immigration laws is
critically important to the national security and public safety of the
United States. The continued presence in the United States of aliens
with final orders of removal, many of whom are criminals who have
served time in our Federal, State, and local jails and who have been
determined in immigration proceedings to be ineligible to remain in the
country, is contrary to the national interest. For this reason, the
E.O. directed the Secretary of Homeland Security (the Secretary) to
prioritize the removal of aliens from the United States who have final
orders of removal and to publish new regulations revising or rescinding
any regulations inconsistent with this E.O.
It is also the policy of the Administration to administer our
immigration laws to create higher wages and employment rates for
workers in the United States. See Exec. Order No. 13788, ``Buy American
and Hire American'' (BAHA), 82 FR 18837 (Apr. 18, 2017). E.O. 13788
directed the Secretary to propose new rules to supersede or revise
current rules to protect the interests of U.S. workers in the
administration of the immigration system. Given the significant
disruptions COVID-19 has caused to the U.S. economy and labor market,
the President also issued Proclamation 10052, ``Suspending Entry of
Immigrants and Nonimmigrants Who Present a Risk to the U.S. Labor
Market During the Economic Recovery following the 2019 Novel
Coronavirus Outbreak'' 85 FR 38263 (June 22, 2020). Proclamation 10052,
among other things, requires the Secretary to take appropriate steps
``to prevent certain aliens who have final orders of removal; . . .
from obtaining eligibility to work in the United States.'' 85 FR at
38266.

[[Page 74208]]

Obtaining employment authorization in the United States has long
been, and continues to be, a significant incentive for aliens to
migrate to (legally and illegally) and remain in the United States. As
such, employment authorization must be carefully regulated to maintain
the integrity of the U.S. immigration system. Many aliens ordered
removed have been released from DHS custody on OSUP because some
countries unreasonably delay issuance of travel documents or due to
lack of good faith efforts by the alien. In addition, because of the
Supreme Court's decision in Zadvydas, DHS must release aliens within a
presumptively reasonable 6-month period, which in many instances is not
sufficient time for DHS to obtain the travel documents needed to remove
the alien from the United States. Further, many of these aliens are
criminals whose continued presence in the United States is not in the
national interest. DHS has identified that providing an ``open market''
employment authorization to aliens with final removal orders
exacerbates the challenges in effectuating removal by incentivizing
such aliens to remain in the United States and possibly compete for
jobs against U.S. workers instead of complying with their removal
orders, working with the country of removal to obtain travel documents
in a timely manner, and departing the United States.
Through this proposed rule, DHS seeks to promote the integrity of
the immigration system by eliminating discretionary employment
authorization for those who have a final order of removal and
encouraging their efforts to obtain travel documents in timely manner
and depart the United States. The proposed rule would also help
strengthen protections for U.S. workers and minimize the risk of
disadvantaging U.S. workers, especially as the U.S. economy and the
labor market recover from the significant disruptions caused by the
COVID-19 pandemic.

A. Enforcement Priorities

Enforcement of the nation's immigration laws is essential to the
integrity of the immigration system. It ensures that only those who are
legally qualified and lawfully in the United States are allowed to
avail themselves of any benefits under the INA. In 1996, Congress
passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
Public Law 104-132, title IV; 110 Stat. 1214 (Apr. 24, 1996) and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Public Law 104-208, div. C; 110 Stat. 3009 (Sept. 28, 1996).
AEDPA and IIRIRA made sweeping changes to U.S. immigration laws
focusing on immigration enforcement, detention of aliens, and bars to
certain types of relief or protection from removal and grants of legal
status. IIRIRA expanded the Attorney General's (now Secretary's)
authority \14\ to detain aliens, including requiring mandatory
detention of aliens convicted of aggravated felony offenses and the
detention of aliens pending removal from the United States. It also
created an expedited removal process for aliens seeking admission into
the United States who do not have proper documents or who make material
misrepresentations, and, as designated by the Secretary, aliens who
have not been inspected and admitted or paroled into the United States
and cannot prove they have been in the United States for at least two
years.\15\ By passing AEDPA and IIRIRA, Congress made clear that
enforcement of the immigration laws is a priority and is critical for
purposes of national security, public safety, and the integrity of the
U.S. immigration system.
---------------------------------------------------------------------------

\14\ On March 1, 2003, the functions of the former Immigration
and Naturalization Service related to border security were
transferred to the Secretary. The Homeland Security Act, Public Law
107-296, 441(c) (6 U.S.C. 251(2)).
\15\ See, e.g., H.R. Conf. Rep. 104-828, title III, subtitle A
(1996).
---------------------------------------------------------------------------

Unfortunately, DHS is not always able to promptly remove aliens
with final orders of removal. Sections 241(a)(1) and (2) of the INA, 8
U.S.C. 1231(a)(1), (2), provide for a 90-day removal period in which
the Secretary is authorized to detain the alien and within which the
Secretary shall remove the alien. However, the removal of aliens from
the United States and repatriation \16\ to their home countries can be
a difficult and time-consuming process that can be further complicated
and impeded by a lack of sufficient agency resources or legal
constraints. Delays in removal also can occur because some countries
unreasonably delay the issuance of travel documents, or unreasonably
delay accepting the repatriation of their nationals.\17\ Based on data
on removals executed by DHS, it may take DHS 6 months or longer to
obtain travel documents and remove an alien from the United States. For
example, in Fiscal Year (FY) 2017, the average time for DHS to remove
an alien who had a final order and was temporarily released on an order
of supervision was 321.39 days.\18\ However, in FY 2018, the number of
days it took DHS to remove an alien who had a final order and was
temporarily released on an order of supervision decreased to just over
6 months (average time to remove was 187.19 days).\19\
---------------------------------------------------------------------------

\16\ Repatriation includes repatriation of aliens to the country
of nationality or citizenship as well as to the country of last
habitual residence.
\17\ See DHS Office of Inspector General Report, ``ICE Faces
Barriers in Timely Repatriation of Detained Aliens,'' OIG-19-28
(Mar. 11, 2019).
\18\ Id.
\19\ Id.
---------------------------------------------------------------------------

While DHS has authority to detain aliens with final orders of
removal during the removal period, if DHS cannot effectuate an alien's
removal in a presumptively reasonable 6-month removal period, DHS must
generally release such aliens from detention. See generally Zadvydas v.
Davis, 533 U.S. 678 (2001).\20\ Due to the U.S. Supreme Court's
decision in Zadvydas, DHS has had to release thousands of aliens from
detention as illustrated in Table 4, including aliens convicted of
aggravated felonies and other serious crimes.
---------------------------------------------------------------------------

\20\ See infra Section IV, paragraph B for additional discussion
of the Zadvydas decision.

Table 4--Aliens Released From ICE Custody on Order of Supervision *
----------------------------------------------------------------------------------------------------------------
Category FY 2015 FY 2016 FY 2017 FY 2018 FY 2019
----------------------------------------------------------------------------------------------------------------
Convicted Criminals \21\........ 3,692 3,179 2,815 4,233 5,269
Pending Criminal Charges........ N/A N/A N/A 431 993
Other Immigration Violator...... 3,080 4,381 3,502 7,748 7,504
-------------------------------------------------------------------------------
Total....................... 6,772 7,560 6,317 12,412 13,766
----------------------------------------------------------------------------------------------------------------
Note: In FY 2018, ICE redefined categorization of immigration violator's criminality. Therefore, the categories
changed from ``criminal'' and ``noncriminal'' to ``convicted criminal alien,'' ``pending criminal charges,''
and ``other immigration violators.''
* Data from ICE Enforcement and Removal Operations, Law Enforcement Systems and Analysis (ERO, LESA) (FY 2015 to
FY 2019).

[[Page 74209]]

When aliens with final removal orders are released from DHS
custody, they are released on orders of supervision. These orders of
supervision contain conditions for release, such as requiring aliens to
assist with efforts to procure travel documents and present themselves
for removal in the event removal can be arranged. Once temporarily
released on an order of supervision, an alien may apply for employment
authorization under 8 CFR 274a.12(c)(18). Each year, USCIS approves
thousands of initial requests for employment authorization and renewals
of such authorization for aliens released from DHS custody on orders of
supervision as shown in Table 5.
---------------------------------------------------------------------------

\21\ ``Convicted criminal'' means an immigration violator with a
criminal conviction entered into ICE's systems of record at the time
of the enforcement action.

Table 5--Aliens Temporarily Released on Orders of Supervision Granted Employment Authorization *
----------------------------------------------------------------------------------------------------------------
Category FY 2015 FY 2016 FY 2017 FY 2018 FY 2019
----------------------------------------------------------------------------------------------------------------
Initials........................ 8,748 7,499 5,273 3,433 4,071
Renewals........................ 21,236 24,464 21,274 20,151 21,350
----------------------------------------------------------------------------------------------------------------
* Data obtained from the USCIS Office of Performance and Quality (OPQ).

As noted above, E.O. 13768 made the prompt removal of aliens
ordered removed a priority for the Administration and directed the
Secretary to publish new regulations revising or rescinding any
regulations that are inconsistent with the E.O. As a result of its
regulatory review, DHS examined the current regulation at 8 CFR
274a.12(c)(18) governing employment eligibility for aliens with a final
removal order and temporarily released on orders of supervision. DHS
determined that this regulation is inconsistent with the
Administration's enforcement priorities because it allows virtually any
alien temporarily released on an order of supervision to qualify for
employment authorization and, as such, incentivizes such aliens to
remain in the United States instead of complying with their removal
order and departing the United States.
The current regulation simply restates the language of INA section
241(a)(7), 8 U.S.C. 1231(a)(7) and does not clearly place the burden on
the alien to establish that he or she warrants a favorable exercise of
discretion to obtain employment authorization. It also does not require
an alien who has a final order of removal and has been temporarily
released on an order of supervision to clearly establish on what basis
he or she is seeking employment authorization, either under INA section
241(a)(7)(A), because every country designated by the alien or under
that section has refused to receive the alien, or under INA section
241(a)(7)(B), because removal is impracticable or against the public
interest. The burden is on the alien, not the U.S. Government, to
establish that he or she is eligible for a discretionary benefit.
Further, the current regulation does not put the public on notice of
when DHS will deem the removal of an alien to be impracticable or what
DHS has determined to be in the public interest for the purpose of
granting employment authorization to aliens with final orders of
removal.
As previously stated, the ability to obtain employment
authorization provides aliens a significant motivation to remain in the
United States. DHS has determined that providing employment
authorization to aliens who have final orders of removal, except in
very limited circumstances, undermines the removal scheme created by
Congress and incentivizes such aliens to remain in the United States
instead of complying with their removal orders, working with the
country of removal to obtain travel documents in a timely manner, and
departing the United States. The revisions under this proposed rule
will address these concerns and align the issuance of employment
authorization with the Administration's enforcement priorities.

B. Strengthening Protections for U.S. Workers

DHS also wants to ensure that any discretionary grant of employment
authorization to aliens is consistent with the Administration's efforts
to strengthen protections for U.S. workers and minimize the risk of
disadvantaging U.S. workers.
As noted above, E.O. 13788 directed DHS to propose new rules to
supersede or revise current rules to protect the interests of U.S.
workers \22\ in the administration of the immigration system. More
recently, the President issued Proclamation 10052, which describes that
significant disruptions COVID-19 has caused to the U.S. economy and the
detrimental impact of foreign workers on the U.S. labor market during
the high domestic unemployment. To address this concern, Proclamation
10052, in addition to suspending the entry of certain immigrants and
nonimmigrants into the United States, requires the Secretary to take
appropriate steps to prevent certain aliens who have final orders of
removal from obtaining eligibility to work in the United States.
---------------------------------------------------------------------------

\22\ Section 1(e) of E.O. 13788 refers to the definition for
U.S. worker as either an employee who is a citizen or national of
the United States; or is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under section 207 of
the INA, is granted asylum under section 208 of the INA, or is an
immigrant otherwise authorized to be employed by the INA or the
Attorney General. INA 212(n)(4)(E), 8 U.S.C. 1182(n)(4)(E).
---------------------------------------------------------------------------

This proposed rule aligns with the Administration's goals of
protecting U.S. workers in the labor market, particularly as the
economy recovers from the extraordinary disruptions resulting from the
COVID-19 outbreak. The U.S. unemployment rose to a record high of 14.7
percent in April 2020 \23\ but declined to 7.9 percent in
September.\24\ However, it remains above 3.5%, which was unemployment
rate for the same month last year (i.e., September 2019).\25\ DHS
asserts it is likely that some aliens with final orders of removal and
temporarily released on an order of supervision may compete for, and
potentially occupy, jobs that U.S. workers might have applied for and
been offered, particularly during this period of high unemployment.
Aliens temporarily released on an order of supervision who apply for
employment authorization under the current regulatory scheme receive an
``open market'' EAD, meaning they may accept employment in any field
and may be hired by any U.S. employer without the U.S. employer having
to demonstrate that there were no available U.S.

[[Page 74210]]

workers or to guarantee that it will pay the prevailing wage or
maintain certain work conditions.
---------------------------------------------------------------------------

\23\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--April 2020. Available at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
\24\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/pdf/empsit.pdf.
\25\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2019, Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
---------------------------------------------------------------------------

C. Exception to Employment Authorization Bars

DHS recognizes that there are certain times an alien cannot be
removed from the United States because DHS is unable to obtain travel
documents from a country of removal. Therefore, DHS is proposing to
create a narrow exception to the bar to employment authorization. DHS
will continue to allow aliens who are subject to a final order of
removal to apply for discretionary employment authorization if (1) DHS
has determined that their removal is impracticable because all
countries from whom DHS has requested travel documents have
affirmatively declined to issue such documents and (2) the aliens
establish economic necessity.
DHS anticipates that the number of aliens who are subject to a
final order of removal for whom DHS has determined that their removal
is impracticable will be relatively small. For example, in FY 2019,
only about 4.8 percent (659) of aliens who were temporarily released on
an order of supervision (13,766) could not be removed in that fiscal
year due to DHS's inability to obtain travel documents during the
fiscal year in which the aliens were counted (Table 6).\26\
Additionally, the percentage of aliens for whom DHS cannot obtain
travel documents has averaged about 5 percent of aliens temporarily
released on an order of supervision since FY 2015. DHS believes that
the number of aliens who would qualify for this exception will remain
small because even after an alien is temporarily released on an order
of supervision, DHS continues to work with the foreign governments to
obtain travel documents and DHS sometimes receives travel documents for
such aliens shortly after their release or within the following fiscal
year.
---------------------------------------------------------------------------

\26\ In certain instances, DHS was able to obtain travel
documents for aliens in the next fiscal year.

Table 6--Aliens Temporarily Released on Order of Supervision--Unable To Obtain Travel Documents
----------------------------------------------------------------------------------------------------------------
Number of aliens on an
Total number of aliens order of supervision Approximate percentage
Fiscal year temporarily released on for whom DHS could not of total (%)
an order of supervision obtain travel docs
----------------------------------------------------------------------------------------------------------------
2015................................. 6,772 369 5.4
2016................................. 7,560 411 5.4
2017................................. 6,317 324 5.1
2018................................. 12,412 530 4.3
2019................................. 13,766 659 4.8
--------------------------------------------------------------------------
Average of During 5-Fiscal Year 9,365 459 4.9
Period..........................
----------------------------------------------------------------------------------------------------------------
* Data from ICE ERO, LESA Statistical Tracking Unit (FY 2015 to FY 2019).

Finally, DHS believes that allowing aliens who fall within the
exception to be eligible for employment authorization is consistent
with section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7). Section
241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), bars employment
authorization for aliens who have been ordered removed. No alien
subject to a final order of removal has a right to apply for or obtain
employment authorization from USCIS under U.S. law. Section 241(a)(7)
of the INA, however, gives the Secretary the authority to grant
employment authorization if the Secretary determines that: (1) An alien
cannot be removed from the United States because all countries of
removal as designated by the alien or delineated under section 241 of
the INA, 8 U.S.C. 1231, have refused to receive the alien, or (2) the
alien's removal is impracticable or contrary to the public interest.
INA section 241(a)(7)(A) and (B), 8 U.S.C. 1231(a)(7)(A) and (B). The
Secretary is not required to make a finding under either subparagraph
(A) or (B) of section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7)(A),
(B), nor is the Secretary required to make a specific finding under
either clauses of subparagraph (B) (i.e. ``otherwise impracticable'' or
``contrary to the public interest''). The Secretary can choose to
maintain the permanent bar on employment authorization for all aliens
subject to a final order of removal without further action.
In this rulemaking, DHS is not making any findings under
subparagraph (A). DHS does not believe any findings under subparagraph
(A) are necessary or required because, consistent with the
Administration's enforcement priorities, all aliens who have a final
order of removal will be subject to removal from the United States,
either to a country where the alien is a citizen, subject, or national,
the alien was born, or the alien has a residence, or to any country
that is willing to accept the alien.
DHS also is not making any findings or creating an exception based
on the ``public interest'' clause of subparagraph (B) because other
avenues for employment eligibility already exist for aliens whom DHS
determines that their removal is contrary to the public interest. For
example, when an alien with a final order of removal is actively
assisting law enforcement entities, and the alien's removal is contrary
to the public interest because of such assistance, there are avenues
for such aliens to qualify for employment authorization, in part, based
on their assistance to law enforcement. Such aliens assisting law
enforcement may qualify for employment authorization if they are
eligible for T non-immigrant status (trafficking victims),\27\ U non-
immigrant status (victims of criminal activity),\28\ and S non-
immigrant status (witnesses in criminal investigations or
prosecutions).\29\ These existing avenues reflect the public interest
in strengthening cooperation with law enforcement and provide DHS with
the appropriate framework to assess the nature of the alien's
assistance to law enforcement.
---------------------------------------------------------------------------

\27\ See INA sec. 101(a)(15)(T) (Eligibility requirements
include compliance with any reasonable request from a law
enforcement agency for assistance in the investigation or
prosecution of human trafficking).
\28\ See INA sec. 101(a)(15)(U) (Eligibility requirements
include helpfulness to law enforcement in the investigation or
prosecution of a qualifying crime).
\29\ See INA sec. 101(a)(15)(S) (Eligibility requirements
include providing law enforcement critical, reliable information
necessary to the successful investigation or prosecution of a
criminal organization).
---------------------------------------------------------------------------

Therefore, except for aliens for whom the Secretary has made a
finding under the impracticability clause of section 241(a)(7)(B) of
the INA, 8 U.S.C. 1231(a)(7)(B), no other alien with a final

[[Page 74211]]

order of removal who has been temporarily released on an order of
supervision will be eligible for employment authorization. This
includes aliens who may have previously been eligible for employment
authorization based on the public interest clause of section
241(a)(7)(B) of the INA, 8 U.S.C. 1231(a)(7)(B), or based section
241(a)(7)(A) of the INA, 8 U.S.C. 1231(a)(7)(A). Furthermore, for
purposes of determining employment eligibility only, DHS further
clarifies that an alien's removal is ``otherwise impracticable'' under
section 241(a)(7)(B) of the INA when DHS determines that all countries
from whom DHS has requested travel documents have affirmatively
declined to issue a travel document.
DHS believes that exercising its discretionary authority as
provided in this proposed rule promotes the protection of U.S. workers
while ensuring the faithful execution and enforcement of the
immigration laws.

IV. Background

A. Legal Authority

DHS's authority to detain and release from custody aliens subject
to final orders of removal on orders of supervision and to grant
employment authorization is found in several statutory provisions.
Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107-
296, 116 Stat. 2135), 6 U.S.C. 112 and section 103 of the INA, 8 U.S.C.
1103, charge the Secretary with the administration and enforcement of
the immigration and naturalization laws of the United States.\30\ In
addition to establishing the Secretary's general authority to
administer and enforce immigration laws, section 103 of the INA
enumerates various related authorities including the Secretary's
authority to establish regulations necessary for carrying out his
authority. Section 241 of the INA, 8 U.S.C. 1231, governs the
detention, release, and removal of aliens after they have received an
administratively final order of removal. Section 274A of the INA, 8
U.S.C. 1324a, governs employment of aliens who are authorized to be
employed by statute or in the discretion of the Secretary and the
requirements U.S. employers must follow to verify the identity and
employment authorization of their employees. The authority to establish
and operate E-Verify is found in sections 401-405 of IIRIRA, Public Law
104-208, 110 Stat. 3009-546. The Secretary proposes the changes in this
rule under these authorities.
---------------------------------------------------------------------------

\30\ Public Law 104-208, div. C, at secs. 401-405.
---------------------------------------------------------------------------

B. Detention and Release of Aliens Ordered Removed

Section 241 of the INA, 8 U.S.C. 1231, governs the detention,
release, and removal of aliens who are subject to final orders of
removal.\31\ When an alien is issued a final order of removal, DHS
generally has 90 days after issuance of the final order of removal to
remove the alien from the United States.\32\ This 90-day removal period
can be extended if the alien fails or refuses to make timely
application in good faith for travel or other documents necessary for
the alien's departure or conspires or acts to prevent removal.\33\
Section 241(a)(2) of the INA, 8 U.S.C. 1231(a)(2), requires detention
during the removal period and specifically prohibits DHS from releasing
an alien who has been found inadmissible under sections 212(a)(2) or
212(a)(3)(B), 8 U.S.C. 1182(a)(2), (a)(3)(B), or deportable under
sections 237(a)(2) or 237(a)(4)(B) of the INA, 8 U.S.C. 1227(a)(2),
(a)(4)(B).
---------------------------------------------------------------------------

\31\ Aliens subject to an expedited removal order, however, are
not subject to release on an order of supervision. INA sec.
235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (an alien
subject to expedited removal under section 235 ``shall be detained
pending a final determination of credible fear [ ] and, if found not
to have such a fear, until removed).''
\32\ INA sec. 241(a)(1)(A), (B)(i), 8 U.S.C. 1231(a)(1)(A),
(B)(i).
\33\ INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C).
---------------------------------------------------------------------------

In certain instances, DHS is not able to remove aliens within the
90-day period after issuance of the final order of removal. In such
cases, DHS must comply with the U.S. Supreme Court's decision in
Zadvydas.\34\ In Zadvydas, the U.S. Supreme Court held that an alien
with a final order of removal cannot be kept in detention (unless
special circumstances exist) \35\ once it has been determined that
there is not a ``significant likelihood of removal in the reasonably
foreseeable future.'' \36\ The Court established six months as the
``presumptively reasonable period of detention.'' After the six-month
period, once the alien provides good reason to believe there is no
significant likelihood of removal in the reasonably foreseeable future,
the Government must respond with sufficient evidence to rebut that
showing.\37\ In the event DHS determines that removal is not likely to
occur in the reasonably foreseeable future, the alien must generally be
temporarily released on an order of supervision. During this period of
release, the alien is required to continue to make efforts (or assist
in efforts) towards his or her removal, and DHS will continue to pursue
the alien's removal.\38\
---------------------------------------------------------------------------

\34\ 533 U.S. 678 (2001).
\35\ Under 8 CFR 241.14, aliens with ``special circumstances''
are those: (1) That have a highly contagious disease that threatens
public safety; (2) whose release would have serious adverse foreign
policy implications; (3) who present a significant threat to
national security or significant risk of terrorism; or (4) who are
specially dangerous.
\36\ Zadvydas, 533 U.S. at 701.
\37\ Id.; see also 8 CFR 241.13(d).
\38\ See 8 CFR 241.5(a).
---------------------------------------------------------------------------

If an alien is temporarily released on an order of supervision, the
order of supervision will contain conditions for release including
requiring the alien to appear periodically before an immigration
officer and comply with the conditions prescribed in the order of
supervision.\39\ INA section 241(a)(3), 8 U.S.C. 1231(a)(3); 8 CFR
241.5(a). If an alien fails to comply with the conditions for release
as specified in the order of supervision, DHS can take the alien back
into custody and detain the alien until he or she is removed. Aliens
who willfully fail to comply with an order of supervision can also be
criminally prosecuted under section 243(b) of the INA, 8 U.S.C.
1253(b).
---------------------------------------------------------------------------

\39\ DHS may also require that an alien temporarily released on
an order of supervision to post a bond of a sufficient amount to
ensure that the alien complies with the terms for release, including
surrendering him or herself to DHS custody for removal. 8 CFR
241.5(b).
---------------------------------------------------------------------------

C. Repatriation of Aliens Ordered Removed

Once an alien has been issued a final order of removal, ICE is
responsible for effectuating the alien's removal from the United States
pursuant to section 241 of the INA, 8 U.S.C. 1231, and 8 CFR 241.
Generally, a travel document must be obtained from a foreign government
that will allow the alien to depart the United States and be
repatriated either to the alien's country of birth, citizenship,
nationality, or last habitual residence or to an alternate country that
has agreed to accept the alien. As indicated earlier, based on data on
removals for FY 2018, it takes DHS an average of a little over 6 months
to obtain travel documents and remove an alien from the United
States.\40\
---------------------------------------------------------------------------

\40\ Furthermore, it should also be noted that even though the
average time to obtain travel documents across all countries was a
little over six months, the process for negotiating with foreign
governments to obtain travel documents is dynamic. While there may
be a period of inactivity by a particular foreign government to
cooperate with issuing travel documents, a policy shift can also
occur quickly and result in prompt repatriation.
---------------------------------------------------------------------------

However, obtaining travel documents is not always easy. Some
countries refuse or unreasonably delay the issuance of the necessary
travel documents to aliens who have been issued a final order of
removal. Countries that unreasonably delay

[[Page 74212]]

accepting the repatriation of their citizens or nationals impede DHS's
ability to remove the alien in a timely manner and interfere with the
United States' sovereign interest in enforcing its immigration laws.
Under section 243(d) of the INA, 8 U.S.C. 1253(d), the Secretary has
the authority to notify the Secretary of State that a specific country
is refusing or unreasonably delaying acceptance of its nationals. Upon
such notification from the Secretary, the Secretary of State shall
order consular officers in that country to discontinue issuing
immigrant visas, nonimmigrant visas, or both to citizens and nationals
of that country.\41\ While DHS and DOS work through various diplomatic
channels and avenues to get such countries to comply, and most
countries do comply, there are countries that refuse to assist in the
repatriation of their citizens and nationals, and as a result, the
United States has imposed visa sanctions under section 243(d) of the
INA, 8 U.S.C. 1253(d), to get such countries to cooperate.\42\
---------------------------------------------------------------------------

\41\ In 2017, DHS and DOS entered into a Memorandum of
Understanding (MOU) Concerning the Removal of Aliens, which
superseded the 2011 ICE and DOS Bureau of Consular Affairs MOU
Concerning Repatriation. The new MOU creates a framework for
effectuating repatriations, sets forth tools the agencies will use
to encourage countries to accept the return of their nationals, and
establishes a target travel document issuance time of 30 days.
\42\ Visa sanctions have been previously invoked under INA
Section 243(d) against the following countries: Guyana in 2001; The
Gambia in 2016; Cambodia, Eritrea, Guinea, and Sierra Leone in 2017;
Burma and Laos in 2018; Cuba, Ghana, and Pakistan in 2019; and
Burundi and Ethiopia in 2020. Visa sanctions have since been lifted
against Guyana, Guinea, and The Gambia. See ``Visa Sanctions Against
Two Countries Pursuant to Section 243(d) of the Immigration and
Nationality Act,'' at https://www.ice.gov/visasanctions (Last
updated Aug. 13, 2020).
---------------------------------------------------------------------------

D. Withholding of Removal Under the INA and Regulations Implementing
CAT and Deferral of Removal Under Regulations Implementing CAT

Even if the alien is inadmissible or deportable and has a final
order of removal, DHS's ability to remove an alien in certain cases is
further restricted by U.S. treaty obligations. The United States is a
party to the 1967 Protocol relating to the Status of Refugees
(Protocol), which incorporates, inter alia, Article 33 of the 1951
Convention relating to the Status of Refugees. 198 U.N.T.S. 137.
Article 33 specifically provides that ``[n]o contracting state shall
expel or return (refouler) a refugee in any manner whatsoever to the
frontier of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a
particular social group, or political opinion.'' \43\ The United States
is also a party to the CAT. Article 3 of the CAT requires that ``[n]o
State Party shall expel, return (`refouler') or extradite a person to
another state where there are substantial grounds for believing that he
would be in danger of being subjected to torture.'' \44\
---------------------------------------------------------------------------

\43\ Convention relating to the Status of Refugees art. 33,
opened for signature July 28, 1951, 198 U.N.T.S. 137.
\44\ Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art 3, ratified Oct. 21, 1994,
1465 U.N.T.S. 85.
---------------------------------------------------------------------------

Though neither of these treaties is self-executing, the United
States has implemented its non-refoulement obligations under them in
statute and regulations. With respect to the Protocol, Congress
implemented the United States' non-refoulement obligations as part the
Refugee Act of 1980, section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3).
With respect to the CAT, Congress directed the appropriate agencies to
publish regulations to implement the United States' obligations under
Article 3 of the CAT in the Foreign Affairs Reform and Restructuring
Act of 1988 (FARRA), Public Law 105-277, Div. G., Sec. 2442(b) (Oct.
21, 1998). DOJ published regulations in 1999 implementing FARRA Sec.
2442. See 64 FR 8478-01 (1999). The regulations governing withholding
of removal based on section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3),
and CAT are now codified at 8 CFR 208.16 through 208.18 and 8 CFR
1208.16 through 1208.18.
Aliens granted withholding of removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), as well as aliens granted withholding of
removal based on the regulations implementing CAT, 8 CFR 208.16(c), are
both subject to mandatory bars to withholding if the alien participated
in the persecution of others, is a human rights violator, or has been
convicted of a particularly serious crime.\45\ However, even if an
alien is not eligible for withholding under the provisions noted above
because he or she is subject to one of the mandatory bars to
withholding, DHS still is not permitted to remove an alien from the
United States if an IJ or the Board of Immigration Appeals (BIA) has
determined that removal would result in the alien being removed to a
country where he or she would more likely than not be tortured. 8 CFR
208.17 and 1208.17. In such instances, the IJ or BIA defers removal to
that country.
---------------------------------------------------------------------------

\45\ 8 CFR 208.16(d)(2) specifically notes that an application
for withholding of removal under CAT shall be denied if the
applicant falls within INA section 241(b)(3)(B).
---------------------------------------------------------------------------

Withholding of deportation or removal based on section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), or the regulations implementing CAT (if
the alien is not subject to a mandatory bar) and CAT deferral of
removal are mandatory and must be granted if the alien meets the burden
of proof. See 8 CFR 208.16(c)(4) and 208.17(a). Once an alien has been
granted withholding of removal or deferral of removal, DHS cannot
remove the alien to the country from which removal has been withheld or
deferred unless the alien's case is reopened and withholding is
terminated under 8 CFR 208.24 or 1208.24, or deferral is terminated
under 8 CFR 208.17 or 1208.17. In most instances an alien granted
withholding of removal or deferral of removal under the regulations
implementing CAT will be released pursuant to an order of supervision,
but such an order does not alter or affect the nondiscretionary nature
of the withholding or deferral of removal grant, even if the alien
subsequently violates the conditions for release as specified in the
order of supervision. Such violations could result in a return of the
alien to ICE custody but will not result in the alien's actual removal
from the United States unless the alien's case is reopened and
withholding is terminated under 8 CFR 208.24 or 1208.24, or deferral is
terminated under 8 CFR 208.17 or 1208.17.

E. Employment Authorization

Whether an alien is authorized to work in the United States depends
on the alien's status in the United States and whether employment is
specifically authorized by statute or only authorized pursuant to the
Secretary's discretion. There are very few statutory provisions that
require the Secretary to grant employment authorization.\46\ While some
statutory provisions specifically allow the Secretary to grant
employment authorization as a matter of discretion,\47\ the Secretary's
general authority under section 274A(h)(3) of the INA, 8 U.S.C.

[[Page 74213]]

1324a(h)(3), is used to establish most discretionary employment
authorization categories. However, in the context of aliens ordered
removed, section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7),
specifically prohibits an alien who has been ordered removed from the
United States from being eligible to receive employment authorization
unless the Secretary determines that the alien cannot be removed
because no country, as designated by the alien or delineated under
section 241(b) of the INA, 8 U.S.C. 1231(b), will accept the alien or
the alien's removal is impracticable or contrary to the public
interest.
---------------------------------------------------------------------------

\46\ See, e.g., INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E)
(requiring spouses of L nonimmigrants to be employment authorized);
INA sec. 214(e)(6), 8 U.S.C. 1184(e)(6) (requiring spouses of E
treaty traders/investors to be employment authorized; INA sec.
214(p), 8 U.S.C. 1184(p) (requiring U nonimmigrants to be employment
authorized).
\47\ See, e.g., INA sec. 106(a), 8 U.S.C. 1105a (providing that
the Secretary may grant employment authorization to spouses and
children of certain nonimmigrants who were battered or subjected to
extreme cruelty); INA sec. 214(p)(6), 8 U.S.C. 1182(p)(6) (providing
that the Secretary may grant employment authorization to aliens who
have filed a bona fide application for U nonimmigrant status).
---------------------------------------------------------------------------

DHS regulations at 8 CFR 274a.12 set forth the categories of aliens
who are authorized to work in the United States, including; those
aliens who are authorized to work incident to their status (8 CFR
274a.12(a)); aliens who are authorized to work in the United States but
only for a specific employer (8 CFR 274a.12(b)); and aliens who fall
within a category that the Secretary has determined may be employment
authorized as a matter of discretion (8 CFR 274a.12(c)). Aliens seeking
employment authorization generally must file an application with USCIS
with the appropriate fee (unless waived) and in accordance with the
form instructions. See 8 CFR 274a.13.

F. Biometric Submission

Current DHS regulations provide general authorities for USCIS to
require the submission of biometrics in connection with immigration
benefits. See 8 CFR 103.2(b)(9). DHS has the authority to require the
submission of biometrics from any applicant, petitioner, sponsor,
beneficiary, or requestor, or individual filing a request, on a case-
by-case basis, through form instructions, or by a Federal Register
notice. See 8 CFR 103.16. Current regulations allow DHS to use the
biometric information to conduct background and security checks,
adjudicate immigration benefits, and perform other functions related to
the administration of the INA. See id. DHS is also authorized to charge
a biometric services fee associated with the submission of biometric
information. See 8 CFR 103.17.

V. Discussion of the Proposed Rule

A. Eligibility for Employment Authorization for Aliens on Orders of
Supervision

Section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), specifically
prohibits an alien who has been ordered removed from the United States
from being eligible to receive employment authorization unless the
Secretary, in the Secretary's discretion, determines, under
subparagraph (a)(7)(A), that the alien cannot be removed because no
country, as designated by the alien or delineated under section 241(b)
of the INA, 8 U.S.C. 1231(b), will accept the alien or, under
subparagraph (a)(7)(B), 8 U.S.C. 1231(a)(7)(B), the alien's removal is
impracticable or contrary to the public interest. Neither the INA nor
the regulations mandate issuance of employment authorization for any
alien subject to a final order of removal or based on such alien's
temporary release from custody on an order of supervision. The statute
preserves the Secretary's discretion to decide if employment
authorization should be granted and, if yes, to which classes of aliens
based upon a finding under subparagraph (A) or (B) of section 241(a)(7)
of the Act, 8 U.S.C. 1231(a)(7)(A), (B).
DHS is proposing to amend 8 CFR 274a.12(c)(18) to eliminate
eligibility for employment authorization for all aliens who have final
orders of removal and are temporarily released from custody on an order
of supervision except for aliens for whom DHS has determined that their
removal from the United States is impracticable because all countries
from whom DHS has requested travel documents have affirmatively
declined to issue such documents. See proposed 8 CFR 274a.12(c)(18).
Providing EADs to aliens who do not fall within this exception
undermines the integrity of the immigration system by incentivizing
aliens with a final removal order to remain in the United States
instead of complying with their removal orders, obtaining travel
documents in a timely manner, and departing the United States.
Encouraging aliens who do not fall within the exception provided in
this rule to timely depart the United States also promotes the
efficient use of DHS's limited resources. Managing the vast number of
aliens on OSUP consumes an inordinate amount of DHS resources.
Management of aliens temporarily released on OSUP requires tracking and
monitoring the status of such aliens, as well as conducting regular
check-ins to ensure compliance with the conditions of release. This
time intensive process takes away from other enforcement priorities
such identifying, detaining, and removing criminal aliens. The proposed
rule also aligns with the Administration's goals of strengthening
protections for U.S. workers in the labor market. It helps strengthen
protections for U.S. workers and minimize the risk of disadvantaging
U.S. workers, especially as the economy and the labor market recovers
from the significant disruptions caused by the COVID-19 pandemic.
DHS has determined that continuing to provide employment
authorization to those aliens who fall within the exception provided in
this rule is consistent with the impracticability clause of INA section
241(a)(7)(B), 8 U.S.C. 1231(a)(7)(B). Table 7 below shows the number of
aliens for whom DHS cannot obtain travel documents annually out of the
total number of aliens removed from the United States.

Table 7--Aliens Removed From the United States and Aliens for Whom DHS Was Unable To Obtain Travel Documents in
the Reported Fiscal Year *
----------------------------------------------------------------------------------------------------------------
Number of aliens on
orders of supervision
Total number of aliens for whom DHS could not
Fiscal year removed from the United obtain travel docs to
States execute removal from
the United States
----------------------------------------------------------------------------------------------------------------
2015.......................................................... 235,413 369
2016.......................................................... 240,255 411
2017.......................................................... 226,119 324
2018.......................................................... 256,085 530
2019.......................................................... 267,258 659
-------------------------------------------------
Average over 5-Fiscal Year Period......................... 245,026 459
----------------------------------------------------------------------------------------------------------------
* Data from ICE ERO, LESA Statistical Tracking Unit (FY 2015 to FY 2019).

[[Page 74214]]

In some instances, even if DHS is not able to obtain travel
documents for an alien in one fiscal year, DHS is able to obtain such
documents in a subsequent fiscal year. DHS expects the number of aliens
whose removal from the United States is impracticable because all
countries from whom DHS has requested travel documents have
affirmatively declined to issue such documents will remain very low. As
such, DHS has determined that it is not contrary to the INA or the
Administration's enforcement priorities to allow such aliens to work
while they remain in the United States and until they can be removed.
For aliens whose removal from the United States is impracticable,
DHS is proposing to make economic necessity, which is currently only a
discretionary factor, a mandatory eligibility requirement, consistent
with other discretionary employment authorization categories. See,
e.g., 8 CFR 274a.12(c)(14). As such, aliens who are eligible to apply
for employment authorization based on the exception created in this
proposed rule will need to demonstrate economic necessity for
employment during the period they are on an order of supervision.
Aliens who are financially able to support themselves during the period
prior to their removal from the United States will not be eligible for
an EAD. Furthermore, to protect U.S. workers against potential
displacement or any disadvantages in the labor market, including during
the current economic recovery, DHS wants to ensure that U.S. employers
who hire aliens who are temporarily released on an order of supervision
are complying with our immigration laws and not employing unauthorized
workers. For this reason, DHS is proposing to require aliens on an
order of supervision who are seeking a renewal of their employment
authorization be employed by a U.S. employer who is a participant in
good standing in the E-Verify program.
DHS proposes to limit the validity period for employment
authorization under 8 CFR 274a.12(c)(18), whether the alien seeks an
initial or renewal EAD, to a period not to exceed increments of one
year.

B. USCIS Evidentiary Requirements

DHS proposes to require aliens temporarily released on orders of
supervision who are eligible to apply for employment authorization
under the new criteria and who are seeking initial employment
authorization or a renewal to submit an Application for Employment
Authorization, (Form I-765) with the appropriate fee, including the
biometric services fee, and in accordance with the form instructions.
See proposed 8 CFR 274a.13(a)(3). DHS also proposes to require such
aliens to submit the following additional documents: (1) A copy of a
decision by an IJ or the BIA, or an administrative removal order issued
by DHS demonstrating that the alien is subject to a final order of
removal or deportation; (2) a completed Employment Authorization
Worksheet (Form I-765WS) to show economic necessity; \48\ and (3) a
copy of the current and complete Order of Supervision (Form I-220B),
including a copy of the complete Personal Report Record which reflects
compliance with the conditions for release.
---------------------------------------------------------------------------

\48\ See also 8 CFR 274a.12(e) which provides that the Federal
Poverty Guidelines under Title 45 of the U.S. Code should be used as
the criteria to establish eligibility for employment authorization
when economic necessity is a factor.
---------------------------------------------------------------------------

Given that ICE is the primary DHS component with jurisdiction over
the detention and removal of aliens with a final removal order, ICE
will make the appropriate determination as to whether the alien's
removal is impracticable at the time of the alien's initial temporary
release on an order of supervision and thereafter when the alien is
required to report to ICE consistent with the conditions of release. If
ICE determines all countries from whom DHS has requested travel
documents have affirmatively declined to issue such documents, ICE
officers will annotate the Form I-220B to indicate that the alien's
removal is currently impracticable because of the reasons stated above.
Aliens with final removal orders who are temporarily released on an
order of supervision and who are seeking employment authorization based
on this exception would not be eligible to apply for employment unless
ICE has made such a determination and annotated the Form I-220B to
indicate the alien's removal is impracticable because of the reasons
stated above.
In addition to the above, DHS proposes to require aliens on orders
of supervision who apply for initial employment authorization after the
effective date of the final rule and who subsequently seek renewal of
their employment authorization to: (1) Show that they meet the
exception, (2) demonstrate economic necessity by submitting a completed
Employment Authorization Worksheet (Form I-765WS), and (3) show that
they are employed by a U.S. employer who is a participant in good
standing in E-Verify (renewals only) by providing their U.S. employer's
E-Verify Company Identification Number and the employer's name as
listed in E-Verify on their application for employment authorization.
Id. An alien who fails to establish that he or she is employed by an E-
Verify employer at the time of filing or adjudication of the
application to renew his or her employment authorization is ineligible
for an EAD. Furthermore, for both initial and renewal EAD applications,
DHS will determine if the alien warrants a favorable exercise of
discretion to grant employment authorization. To this end, aliens may
include supporting documentation of favorable factors as part of the
EAD application.

C. Biometric Submission and Criminal History

Currently, all (c)(18) applicants receive an appointment notice
from USCIS to submit their biometrics so USCIS can use them for
identity verification and EAD production. DHS proposes to codify this
biometric submission and associated biometric services fee for aliens
seeking discretionary employment authorization under the (c)(18)
category. See proposed 8 CFR 241.4(j)(3).
In addition, DHS also proposes to use the (c)(18) applicant's
biometrics to screen for criminal history. DHS has a strong interest in
ensuring public safety and preventing aliens with significant criminal
histories from obtaining a discretionary benefit. As such, for aliens
who fall within the exception provided in this proposed rule and meet
the economic necessity requirement, DHS is proposing to consider a
(c)(18) applicant's criminal history in determining whether DHS will
favorably exercise its discretion to grant an employment authorization.
Where criminal history is a factor in the adjudication of an
immigration benefit, DHS typically conducts biometric-based screening
to independently identify and verify criminal history in addition to
reviewing any evidence submitted by the applicant regarding his or her
criminal history.\49\ As such, DHS would also use the (c)(18)
applicant's biometrics to screen against government databases (for
example, FBI databases) to determine if he or she matched any criminal
activity on file. USCIS will continue to notify applicants of the
proper date, time, and location to submit their biometrics after the
application for employment authorization has been filed.
---------------------------------------------------------------------------

\49\ See ``DHS/USCIS-018 Immigration Biometric and Background
Check System of Records,'' 83 FR 36950 (July 31, 2018).
---------------------------------------------------------------------------

Furthermore, DHS proposes to require a biometric services fee of
$30 for (c)(18)

[[Page 74215]]

EAD applicants. See proposed 8 CFR 106.2(a)(32(i)(C). DHS requires a
biometric services fee of $30 to be collected where the underlying
immigration benefit fee does not capture or incorporate biometric
service costs.\50\ See 8 CFR 103.17 & 106.2(a)(32)(i)(A), (B). DHS did
not require a biometric services fee for (c)(18) EAD applicants in the
2020 USCIS fee rule because this proposed rule and the USCIS fee rule
were under development simultaneously, yet independently of one
another. See 84 FR 62280-62371 (Nov. 14, 2019). Additionally, (c)(18)
EAD applicants do not have an underlying immigration benefit
application or petition that they must file into which associated
biometric submission and processing costs can be incorporated.
Therefore, to recover the cost of biometrics services for (c)(18) EAD
applications, DHS must require a biometrics fee for a (c)(18) EAD
applicant. Thus, DHS proposes to require a $30 biometric services fee
with the Form I-765 for (c)(18) EAD applicants. See proposed 8 CFR
106.2(a)(32)(i)(C).
---------------------------------------------------------------------------

\50\ 84 FR 62280, 62302-62303 (Nov. 14, 2019). Explaining how
USCIS calculated the biometric services fee of $30 that will be
required for certain forms for which it performs biometrics
services.
---------------------------------------------------------------------------

D. Aliens Granted Deferral of Removal Under the Regulations
Implementing CAT

Once an alien has been granted withholding or deferral of removal,
DHS cannot remove the alien to the country from which removal has been
withheld or deferred unless withholding or deferral are terminated
under applicable regulatory procedures set out in 8 CFR 208.24,
1208.24, 208.17, 1208.17, or 1208.18(c). The average number of aliens
granted CAT deferral of removal over a 5-fiscal-year period was 147,
and these numbers have not changed significantly over the last
decade.\51\ As reflected in Table 8 below, the number of aliens granted
CAT deferral from FY 2014 through FY 2018, remains low.
---------------------------------------------------------------------------

\51\ U.S. Department of Justice, Executive Office for
Immigration Review, Statistical Yearbooks, FY 2014 through FY 2018
at https://www.justice.gov/eoir/statistical-year-book.

Table 8--FY 2014 Through FY 2018 CAT Cases Granted *
------------------------------------------------------------------------
CAT deferral
Fiscal year of removal
------------------------------------------------------------------------
2014.................................................... 121
2015.................................................... 121
2016.................................................... 140
2017.................................................... 175
2018.................................................... 177
---------------
5-Year Average...................................... 147
------------------------------------------------------------------------
* U.S. Department of Justice, Executive Office for Immigration Review,
Statistical Yearbooks for FY 2014-FY 2018.

Currently, aliens who are not going to be removed because they are
granted withholding of removal based on section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), or the regulations implementing CAT are employment
authorized based on the grant of withholding. See 8 CFR 274a.12(a)(10).
However, DHS's regulations do not clearly indicate the basis for
withholding of removal (INA section 241(b)(3) or CAT). DHS has
determined that aliens who receive CAT deferral of removal should also
be included in the regulatory category governing employment
authorization for aliens granted withholding of removal. Aliens granted
deferral of removal will be employment authorized based on the grant of
deferral, until deferral is terminated under applicable regulations.
DHS proposes to amend the regulations to make these clarifications.

E. Effective Date of the Final Rule

With the exception of aliens whose removal DHS has determined is
impracticable because all countries from whom DHS has requested travel
documents have affirmatively declined to issue such documents, DHS
proposes to apply changes made by this rule only to initial and renewal
applications under 8 CFR 274a.12(c)(18) filed on or after the effective
date of the final rule. DHS proposes to allow aliens temporarily
released on orders of supervision who are already employment authorized
prior to the final rule's effective date to remain employment
authorized until the expiration date on their EAD, unless the card is
revoked under 8 CFR 274a.14. USCIS would continue processing any
pending application for a replacement EAD received before the effective
date and receiving new applications for replacement EADs because those
adjudications are not considered a new grant of employment
authorization but a replacement of an EAD based on a previously
authorized period.
DHS further proposes to allow aliens temporarily released on orders
of supervision who are granted discretionary employment authorization
after the effective date of the final rule to have their employment
authorization renewed only if: (1) DHS determines the alien's removal
is impracticable because all countries from whom DHS has requested
travel documents have affirmatively declined to issue such documents,
(2) the alien shows economic necessity for employment, (3) the alien is
employed by a U.S. employer who is a participant in good standing in E-
Verify (renewals only), and (4) the alien establishes that he or she
warrants a favorable exercise of discretion to obtain employment
authorization. DHS is proposing in this rule that it will consider an
E-Verify employer to be a participant in good standing if the employer:
(1) Has enrolled in E-Verify with respect to all hiring sites in the
United States that employ an alien temporarily released on an order of
supervision who has received employment authorization under this rule
as of the time of filing of the alien's application for employment
authorization, (2) is in compliance with all requirements of the E-
Verify program, including but not limited to verifying the employment
eligibility of newly hired employees at those hiring sites, and (3)
continues to be a participant in good standing in E-Verify at any time
during which the employer employs an alien temporarily released on an
order of supervision who has received employment authorization under
this rule.

F. Additional Amendments

Finally, DHS is updating the regulations at 8 CFR 241.4(j)(3),
241.5(a), 241.5(c), and 241.13(h)(1) to remove references to obsolete
titles of officials of the former INS, to refer generally to ICE as the
DHS component with authority to issue orders of supervision, to reflect
USCIS as the agency that grants employment authorization, and include
appropriate references. This proposed change gives the Secretary and
the Director of ICE the flexibility to delegate authorities within ICE
to appropriate component heads, notwithstanding the particular titles
that may be assigned to a particular position in the future.\52\ See
proposed 8 CFR

[[Page 74216]]

241.4(j)(3), 241.5(a), 241.5(c), and 241.13(h)(1). Additionally, DHS is
updating 8 CFR 241.5(a) to include a cross-reference to 8 CFR
241.13(h). This cross reference will clarify that aliens temporarily
released on an order of supervision under 8 CFR 241.13(h) are subject
to the conditions of release provided in 8 CFR 241.5 and close the loop
with the concomitant reference to 8 CFR 241.5 contained within 8 CFR
241.13(h). See proposed 8 CFR 241.5(a). DHS will update all of 8 CFR
241 in a future rulemaking to remove additional references to obsolete
INS titles consistent with the proposed change made under section 8 CFR
241.5(a).
---------------------------------------------------------------------------

\52\ After the functions of the former Immigration and
Naturalization Service were transferred to the Secretary pursuant to
the Homeland Security Act, Public Law 107-296, 441(c) (6 U.S.C.
251(2)), the functions were further delegated to component heads.
ICE now has primary authority over all enforcement actions and USCIS
has authority over adjudications of immigration benefits, including
issuance of employment authorization documents. See DHS Delegation
No. 7030.2, ``Delegation of Authority to the Assistant Secretary for
U.S. Immigration and Customs Enforcement,'' (Nov. 13, 2004); DHS
Delegation No. 0150.1, ``Delegation to the Bureau of Citizenship and
Immigration Services,'' (June 5, 2003).
---------------------------------------------------------------------------

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)

Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if a
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated as a ``significant
regulatory action'' that is economically significant since it is
estimated the proposed rule likely would have an annual effect on the
economy of $100 million or more, under section 3(f)(1) of E.O. 12866.
Accordingly, OMB has reviewed this proposed regulation.
1. Summary
This proposed rule is estimated to result in a reduction in the
number of aliens on orders of supervision who are eligible for
employment authorization, which could result in lost earnings for those
no longer eligible. This loss of earnings would result in a transfer of
costs from the alien to their support network, including family
members, community groups, non-profits or third-party organizations to
provide for the alien and any dependents. In addition, DHS estimates
increased filing burdens associated with the proposed rule for those
who remain eligible for employment authorization. Employers that
currently hire alien workers who would no longer be eligible to renew
under this rule could experience new costs due to employee turnover or
complying with the proposed E-Verify requirement. Finally, the proposed
rule may result in a loss of tax revenue.
Under the proposed rule, DHS anticipates there would be six types
of economic impacts that DHS can estimate and quantify: (1) Potential
lost earnings for alien workers on orders of supervision who may no
longer be eligible for employment authorization; (2) increased time
burden for applicants to submit forms; (3) added time and costs for
applicants to submit biometrics; (4) labor turnover costs that
employers of alien workers on orders of supervision could incur when
their employees' EADs expire and are not renewed; (5) costs to
employers to enroll in and maintain an E-Verify account as a
participant in good standing to retain alien workers on orders of
supervision applying for renewal EADs; and (6) potential employment tax
losses to the Federal Government.
DHS estimates that some aliens with final removal orders and
temporarily released on orders of supervision would be ineligible for
discretionary EADs due to this proposed rule. However, DHS cannot
estimate with precision what the future eligible population would be
because of data constraints and, therefore, relies on a range with an
upper and lower bound. The estimated costs of this proposed rule would
range from a minimum of about $94,868, associated with biometrics and
added burdens for relevant filing forms to a maximum of $1,496,016,941
(annualized 7%) should no replacement labor be found for aliens on
orders of supervision who would be ineligible for employment
authorization under this rule.\53\ The ten-year undiscounted costs
would range from $940,239 to $14,722,941,163. DHS estimates
$228,789,887 (annualized 7%) as the maximum decrease in employment tax
transfers from companies and employees to the Federal Government.
---------------------------------------------------------------------------

\53\ DHS estimates some of the costs and benefits of this rule
using the newly published U.S. Citizenship and Immigration Services
Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, final rule (``Fee Schedule Final Rule''), and
associated form changes, as the baseline. 85 FR 46788 (Aug. 3,
2020). The Fee Schedule Final Rule was scheduled to go into effect
on October 2, 2020. On September 29, 2020, the U.S. District Court
for the Northern District of California issued a nationwide
injunction, which prevents DHS from implementing the Fee Schedule
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend
this lawsuit and is not changing the baseline for this rule as a
result of the litigation. Should DHS not prevail in the Fee Schedule
Final Rule litigation, this rule may reflect understated costs
associated with biometrics fees and overstated benefits associated
with filing Form I-765.
---------------------------------------------------------------------------

Table 9 provides a summary of the proposed regulatory changes and
the estimated impacts of the proposed rule.
BILLING CODE 9111-97-P

[[Page 74217]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.083

[[Page 74218]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.084

[[Page 74219]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.085

BILLING CODE 9111-97-C
The impacts of reducing the number of aliens temporarily released
on orders of supervision that are eligible for EADs include both
potential distributional impacts (transfers) and costs. USCIS uses the
lost compensation to aliens temporarily released on orders of
supervision that are no longer eligible for EADs as a measure of the
impact of this change--either as distributional impacts (transfers)
from these aliens to others or as a proxy for businesses' cost for lost
productivity. If all companies are able to easily find reasonable labor
substitutes for the positions the aliens temporarily released on orders
of supervision would have otherwise filled, DHS estimates a maximum of
$1,495,358,741 (annualized at 7%) would be transferred from these
workers to others in the labor force (or induced back into the labor
force). Under this scenario, there would be no federal employment tax
losses. Conversely, if companies are unable to find reasonable labor
substitutes for the position the aliens temporarily released on orders
of supervision would have filled then a maximum of $1,495,358,741
(annualized 7%) is the estimated monetized cost of this provision, and
$0 is the estimated monetized transfers from these aliens to other
workers. In addition, under this scenario where jobs would go unfilled,
there would be a loss of employment taxes to the Federal Government.
USCIS estimates $228,789,887 (annualized 7%) as the maximum decrease in
employment tax transfers from companies and employees to the Federal
Government.
The two scenarios described above represent the estimated endpoints
for the range of monetized impacts resulting from the provisions that
affect employment eligibility for aliens temporarily released on orders
of supervision. There are other costs of the rule, including E-Verify,
biometrics, labor turnover, and additional form burdens. These costs
exist under both scenarios described above, and thus $94,868 is the
minimum cost of the rule (annualized 7%).
DHS is aware that the outbreak of COVID-19 will likely impact these
estimates in the short run.\54\ As discussed above, the analysis
presents a range of impacts, depending on if companies are able to find
replacement labor for the jobs alien workers temporarily released on
orders of supervision would have filled. In September 2020, the
unemployment rate was 7.9 percent.\55\ This is an improvement on
April's 14.7 percent which marked the highest rate and the largest
over-the-month increase in the history of the series (seasonally
adjusted data are available back to January 1948).\56\ By comparison,
the unemployment rate for September 2019 was 3.5%.\57\ DHS assumes that
during the COVID-19 pandemic, with additional available labor
nationally, companies are more likely to find replacement labor for the
job the alien on an order of supervision would have filled.\58\ Thus,
in the short-run during the pandemic and the ensuing economic recovery,
the lost compensation to EAD applicants as a result of this rule is
likely to mean that the costs of the rule will be lower than they would
otherwise have been. DHS notes that although the pandemic is
widespread, the severity of its impacts varies by locality.
Consequently, it is not clear to what extent the distribution of alien
workers temporarily released on orders of supervision overlaps with
areas of the country that will be more or less impacted by the COVID-19
pandemic. Accordingly, DHS cannot estimate with

[[Page 74220]]

confidence to what extent the impacts will be transfers instead of
costs.
---------------------------------------------------------------------------

\54\ On March 13, 2020, the President declared that the COVID-19
outbreak in the United States constitutes a national emergency. See
``Proclamation on Declaring a National Emergency Concerning the
Novel Coronavirus Disease (COVID-19) Outbreak,'' available at
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
\55\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2020. Available at: https://www.bls.gov/news.release/archives/empsit_10022020.pdf.
\56\ In April 2020, the unemployment rate increased by 10.3
percentage points to 14.7 percent. Department of Labor, Bureau of
Labor Statistics, The Employment Situation--April 2020. Available
at: https://www.bls.gov/news.release/archives/empsit_05082020.pdf.
\57\ Department of Labor, Bureau of Labor Statistics, The
Employment Situation--September 2019, Employment Situation Summary
Table A. Household data, seasonally adjusted. Available at: https://www.bls.gov/news.release/archives/empsit_10042019.pdf.
\58\ The Congressional Budget Office estimates the unemployment
rate is expected to average close to 14 percent during the second
quarter, See: CBO's Current Projections of Output, Employment, and
Interest Rates and a Preliminary Look at Federal Deficits for 2020
and 2021 https://www.cbo.gov/publication/56335 April 24, 2020.
---------------------------------------------------------------------------

[[Page 74221]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.086

[[Page 74222]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.087

In addition, Table 11 presents the prepared accounting statement,
as required by the Office of Management and Budget (OMB) Circular A-4,
showing the costs associated with this proposed regulation. Note that
under costs, the primary estimates provided in the accounting statement
are calculated based the minimum cost from the scenario that all aliens
temporarily released on orders of supervision are replaced with other
workers and the maximum cost from the scenario that no aliens
temporarily released on orders of supervision are replaced with other
workers (scenario presented in Tables 10(A) and (B)).

[[Page 74223]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.098

[[Page 74224]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.099

BILLING CODE 9111-97-C
The benefits potentially realized by the proposed rule are both
qualitative and quantitative. Under this proposed rule, a U.S. worker
may have a better chance of obtaining jobs that some (c)(18) alien
workers currently hold, as the proposal would reduce employment
authorization eligibility for this population of aliens who have been
ordered removed from the country. Second, the proposed rule may reduce
the incentive for aliens to remain in the United States after receiving
a final order of removal, which could reduce the amount of government
resources expended on enforcing removal orders for such aliens as well
as monitoring and tracking aliens temporarily released on orders of
supervision. Third, DHS clarifies that aliens granted CAT deferral of
removal would no longer need to submit Form I-765 in order to become
employment authorized after the effective date of the final rule. DHS
estimates the total benefits for this population would range from $0 to
$105,690 annually. Additional savings could also be accrued in the form
of opportunity costs of time if applicants would have spent time
submitting evidence under any of the (c)(18) considerations.
2. Background and Purpose of the Proposed Rule
ICE works to remove aliens subject to a final order of removal from
the United States promptly. Removal operations require integrated
coordination, management, and facilitation efforts. The removal of
aliens subject to final orders of removal is a national security
priority for the United States, highlighted by E.O. 13768, ``Enhancing
Public Safety in the Interior of the United States'' (Jan. 25, 2017).
By law, DHS is required to remove or release a detained alien
ordered removed within a period of 90 days (``removal period'') after
the issuance of a final order of removal.\59\ Furthermore, the law
expressly prohibits DHS from releasing an alien during the removal
period if the alien was ordered removed based on criminal grounds and/
or terrorist activities.\60\
---------------------------------------------------------------------------

\59\ INA sec. 241(a)(1). The 90-day period is extended if the
alien fails or refuses to make timely application in good faith for
travel or other documents necessary to the alien's departure or
conspires or acts to prevent removal.
\60\ INA sec. 241(a)(2).
---------------------------------------------------------------------------

For aliens detained beyond the removal period, DHS must comply with
the U.S. Supreme Court's decision in Zadvydas \61\ which held that an
alien with a final order of removal cannot be kept in detention (unless
special circumstances exist) once it has been determined that there is
not a ``significant likelihood of removal in the reasonably foreseeable
future.'' \62\ The Court established 6 months as the ``presumptively
reasonable period of detention.'' After the 6-month period, ``once the
alien provides good reason to believe there is no significant
likelihood of removal in the reasonably foreseeable future, the
Government must have sufficient evidence to rebut that showing.'' \63\
---------------------------------------------------------------------------

\61\ 533 U.S. 678 (2001).
\62\ Id.
\63\ Id. at 701; see also 8 CFR 241.13(d).
---------------------------------------------------------------------------

Aliens with final orders of removal who are released from ICE
custody under INA section 241(a)(3) are subject to supervision.\64\ The
supervision is

[[Page 74225]]

effectuated through ICE Form I-220B, Order of Supervision. Conditions
for release typically include regular check-ins with ICE, making good
faith efforts to obtain travel documents and travel arrangements, not
associating with gangs, criminals, or engaging in criminal activity,
and participating in requisite rehabilitative treatment programs.
---------------------------------------------------------------------------

\64\ INA sec. 241(a)(3). When releasing an alien ordered removed
on an order of supervision, ICE is not necessarily making a
determination that all applicable foreign countries are refusing to
accept the alien. ICE's efforts to repatriate are always ongoing and
even after an alien is temporarily released on an order of
supervision the foreign government could very well comply with
repatriation efforts which would allow ICE to immediately take the
alien back into custody and remove the alien from the United States.
---------------------------------------------------------------------------

DHS currently extends eligibility for employment authorization to
aliens, also known as the (c)(18) category, who have been ordered
removed and have been temporarily released from custody under INA
section 241(a)(3), 8 U.S.C. 1231(a)(3), on an order of supervision. See
8 CFR 241.5(c), 274a.12(c)(18). In order for such aliens to obtain
employment authorization, they must file a Form I-765 accompanied by
required documentation and the proper fee. Required documentation for
Form I-765 includes a copy of the order of removal and the order of
supervision. USCIS would require aliens temporarily released on an
order of supervision to submit biometrics and pay the associated $85
fee as part of their initial or renewal EAD application. If USCIS
approves the alien's Form I-765 under the (c)(18) category, it is valid
for 1 year,\65\ and USCIS mails an EAD according to the mailing
preferences indicated by the applicant. To renew an alien's employment
authorization under the (c)(18) category, an alien must file Form I-
765, accompanied by required documentation, biometrics and the proper
fees, to demonstrate that they remain on an order of supervision and
continue to comply with it. USCIS may, at discretion, deny an
application regardless of eligibility. If USCIS denies the Form I-765
application, the agency sends a written notice to the applicant
explaining the basis for denial.
---------------------------------------------------------------------------

\65\ All initial and renewal EADs issued under the (c)(18)
category are currently valid for one year upon issuance. Replacement
EAD cards are issued for the same dates as the previous card which
would have had a validity period of one year.
---------------------------------------------------------------------------

As explained in detail in the preamble, DHS has determined that
employment authorization should be limited to a subset of aliens
ordered removed and temporarily released on orders of supervision to
better align with the DHS enforcement mission and the Administration's
current immigration enforcement priorities, including those outlined in
E.O. 13768, and efforts to strengthen protections of U.S. workers.
Therefore, DHS proposes to amend 8 CFR 274a.12(c)(18) to eliminate
eligibility for employment authorization for aliens temporarily
released on orders of supervision unless DHS has determined that the
alien's removal is impracticable because all countries from whom DHS
has requested travel documents have affirmatively declined to issue a
travel document.
Further, DHS intends to require aliens who qualify under this
exception to establish an economic necessity for employment during the
period they are on orders of supervision and expand the current lists
of factors it considers as a matter of discretion when adjudicating an
application for employment authorization from aliens on orders of
supervision to include the alien's compliance with the conditions for
release, and the alien's criminal history, including but not limited to
any criminal arrests, charges, or convictions subsequent to the alien's
release on an order of supervision.
Meanwhile, under proposed 8 CFR 274a.12(a)(10), aliens who have
received a grant of CAT deferral of removal, as described in 8 CFR
208.17 and 1208.17, would be eligible for an EAD based solely on the
grant of deferral, similar to aliens who are granted withholding of
removal based on INA 241(b)(3), 8 U.S.C. 1231(b)(3), or the regulations
implementing CAT. Aliens who fall under the 8 CFR 274a.12(a)(10) are
not subject to requirements to apply to DHS to obtain employment
authorization before they can begin work. However, the alien is
required to apply (i.e., submit Form I-765) in order to receive a
physical EAD if they want a document evidencing their employment
authorization pursuant to their grant of withholding or deferral.
Currently, aliens granted CAT deferral of removal are required to apply
for an EAD under the (c)(18) category. Upon the effective date of the
final rule, these aliens would no longer be required to meet the
requirements of the (c)(18) category or pay the initial $410
application fee for employment authorization since they would be able
to apply for an EAD under the (a)(10) category, which is fee exempt for
initial applicants. However, if these aliens want a physical EAD card
as evidence of their employment authorization they would need to submit
Form I-765.
Additionally, USCIS proposes to amend regulations at 8 CFR
274a.12(c)(18) and 274a.13(a) to require renewal applicants be employed
by an E-Verify employer, to clarify the application and evidentiary
requirements for such aliens seeking initial and renewal employment
authorization under the (c)(18) category, and to codify the validity
period of a (c)(18) EAD. See proposed 8 CFR 274a.12(c)(18)(iii) and
274a.13(a)(3)(ii). Under the proposed rule, a renewal EAD would only be
granted to those applicants eligible for an EAD under the proposed
exception and who establish that they are employed by a U.S. employer
that is a participant in good standing in DHS's employment eligibility
verification system (E-Verify) by providing their U.S. employer's E-
Verify Company Identification Number and employer's name as listed in
E-Verify. Renewal applications for aliens who cannot establish that
they are employed by an E-Verify employer would be denied and fees
would not be returned.
DHS proposes to apply changes made by this rule only to initial and
renewal applications under 8 CFR 274a.12(c)(18) filed on or after the
effective date of the final rule. DHS proposes to allow aliens
temporarily released on orders of supervision who are already
employment authorized prior to the final rule's effective date to
remain employment authorized until the expiration date on their EAD,
unless the card is revoked under 8 CFR 274a.14. USCIS would continue
processing any pending application for a replacement EAD received
before the effective date and receiving new applications for
replacement EADs because such adjudications are not considered a new
grant of employment authorization but a replacement of an EAD based on
a previously authorized period.
3. Population
The populations that could be affected by this proposed rule
consist of work-authorized aliens who have final orders of removal but
who are temporarily released from custody on an order of supervision
and aliens granted CAT deferral of removal. DHS estimates the affected
population based on historical data for FY 2010 to FY 2019.
Eligibility for Employment Authorization for Aliens on Orders of
Supervision
Table 12 shows the annual receipts and approvals for initial and
renewal applications of employment authorization for aliens temporarily
released on an order of supervision using Form I-765 for FY 2010 to FY
2019.\66\
---------------------------------------------------------------------------

\66\ This data was provided by the USCIS Office of Performance
and Quality (OPQ) and can be found online at https://www.uscis.gov/sites/default/files/document/data/I-765_Application_for_Employment_FY03-19.pdf. Note that replacement
filings and pending counts are not presented because they would not
be impacted by the proposed rule and are thus immaterial to the
analysis.

[[Page 74226]]

Table 12--Total Annual Form I-765 Receipts and Approvals for Aliens Temporarily Released on Orders of
Supervision, FY 2010 to FY 2019
----------------------------------------------------------------------------------------------------------------
Initial Renewal
Fiscal year ---------------------------------------------------------------
Receipts Approvals Receipts Approvals
----------------------------------------------------------------------------------------------------------------
2010............................................ 6,420 5,559 9,328 8,297
2011............................................ 6,827 5,906 12,361 11,765
2012............................................ 8,446 7,719 14,242 13,730
2013............................................ 9,163 7,091 17,316 15,119
2014............................................ 10,658 8,681 19,427 17,441
2015............................................ 9,628 8,748 22,801 21,236
2016............................................ 8,665 7,499 26,102 24,464
2017............................................ 6,235 5,273 26,332 21,274
2018............................................ 4,408 3,433 20,640 20,151
2019............................................ 5,697 4,071 19,306 * 21,350
----------------------------------------------------------------------------------------------------------------
* The number of approved applications for renewal EADs in FY 2019 exceed the number of receipts since some
renewal EAD applications were received in a previous fiscal year.

The number of initial approved employment authorizations increased
from 5,559 in FY 2010 to 8,748 in FY 2015, then declined to 3,433 in FY
2018 before increasing to 4,071 in FY 2019. The number of renewal
approvals increased from 8,297 in FY 2010 to 24,464 in FY 2016 before
decreasing to about 21,000 renewal approvals annually from FY 2017 to
FY 2019. Although DHS estimates this proposed rule would reduce the
number of aliens eligible for employment authorization and anticipates
a decline in (c)(18) receipts and approvals for both initial and
renewals, DHS is unable to determine the magnitude of decline for
reasons discussed further in this analysis.
In order to project future growth in the number of initial receipts
and approvals, this analysis uses the 10-year annual percentage growth
rates of -1.2 percent for initial receipts (Table 13).\67\ DHS
recognizes that the 5-year annual percentage growth rate also shows a
decline (-10.0 percent).\68\ For this analysis, DHS chooses the more
conservative projection of initial receipts by using the 10-year annual
percentage growth rate (-1.2 percent). By choosing the 10-year annual
percentage growth rate, the projection (or baseline) will be higher for
initial receipts which will lead to a greater range of potential cost
estimates.
---------------------------------------------------------------------------

\67\ Calculation: (((FY 2019 Initial Receipts 5,697/FY 2010
Initial Receipts 6,420) [caret] (1/10))-1) * 100 = -1.2 percent.
\68\ Calculation: (((FY 2019 Initial Receipts 5,697/FY 2015
Initial Receipts 9,628) [caret] (\1/5\))-1) * 100 = -10.0 percent.

Table 13--Annual Percentage Growth Rates of Receipts
------------------------------------------------------------------------
Fiscal years Initial Renewal
------------------------------------------------------------------------
2015-2019............................... -10.0 -3.3
2010-2019............................... -1.2 7.5
------------------------------------------------------------------------
Source: USCIS analysis.

To project the number of renewal receipts, DHS also considered the
5- and 10-year annual percentage growth rates. Table 13 shows the 5-
year annual percentage growth rate in the number of renewal receipts is
-3.3 percent and the 10-year annual percentage growth rate is 7.5
percent.\69\ Similar to the growth rates for the initial receipts,
renewal receipts have a negative annual percentage growth rates over
the 5-year period.
---------------------------------------------------------------------------

\69\ Calculations:
(((FY 2019 Renewal Receipts 19,306/FY 2015 Renewal Receipts
22,801) [caret] (\1/5\))-1) * 100 = -3.3 percent.
(((FY 2019 Renewal Receipts 19,306/FY 2010 Renewal Receipts
9,328) [caret] (1/10))-1) * 100 = 7.5 percent.
---------------------------------------------------------------------------

To project renewal receipts going forward, DHS acknowledges that
aliens temporarily released on orders of supervision have removal
orders and are continually being deported from the United States on an
ongoing basis. Additionally, the declining growth rates for initial
receipts would, at some point, result in either a plateau or a decrease
for renewal receipts. Therefore, we do not find it reasonable to use
the 10-year annual percentage growth rate of 7.5 percent to project
renewal receipts. Therefore, this analysis uses the 5-year annual
percentage growth rate of -3.3 percent to project a decline in the
number of renewal receipts.
In order to estimate initial and renewal approvals, DHS recognizes
that approvals have generally moved in line with receipts.\70\ DHS
recognizes that the number of approvals could occasionally differ from
or lag receipts, but over time we would expect approvals to mostly move
in line with receipts. Over the 10-year period from FY 2010 to FY 2019,
the average initial approval rate was approximately 84 percent of
initial receipts and the average renewal approval rate was
approximately 93 percent of renewal receipts.\71\
---------------------------------------------------------------------------

\70\ Exceptions for initials include FY 2013 when initial
approvals declined while initial receipts increased; exceptions for
renewals include FY 2017 when renewal receipts increased slightly
while renewal approvals declined and FY 2019 when the number of
renewal approvals exceeded the number of renewal receipts received.
\71\ Calculations:
(6,398 (initial approvals 10-year average)/7,615 (initial
receipts 10-year average)) x 100 = 84 percent (rounded).
(17,483 (renewal approvals 10-year average)/18,786 (renewal
receipts 10-year average)) x 100 = 93 percent (rounded).
---------------------------------------------------------------------------

To project FY 2020 initial receipts, the 10-year annual percentage
growth rate of -1.2 percent (Table 13) is multiplied by the number of
initial receipts from FY 2019, 5,697 (Table 12), which equals -68
(rounded). Subtracting 68 from 5,697 equals 5,629 (Table 14). The FY
2020 initial approvals are calculated by multiplying the 10-year
average initial approval rate of 84 percent by the estimated number

[[Page 74227]]

of initial receipts from FY 2020, 5,629, which equals 4,728
(rounded).\72\ The FY 2019 renewal receipts, 19,306, is multiplied by
the 5-year annual percentage growth rate of -3.3 to get -637
(rounded).\73\ Subtracting 637 from the FY 2019 renewal receipts equals
18,669. The 18,669 is then multiplied by the 10-year average renewal
approval rate of 93 percent, which equals 17,362 (rounded) to get the
FY 2020 renewal approvals.\74\ To project receipts for FY 2021, the
same process was repeated using the calculated FY 2020 numbers in place
of those from FY 2019. Approvals were then calculated based on the
projected receipts for FY 2021. The process was then repeated for
subsequent years. These projections are shown in Table 14 and are used
as the baseline for this rule.
---------------------------------------------------------------------------

\72\ Calculation: 5,629 (FY 2020 estimated initial receipts) x
84 percent = 4,728 estimated FY 2020 initial approvals.
\73\ Calculation: FY 2019 renewal receipts 19,306 x 5-year
annual percentage growth rate -0.033 = -637.
\74\ Calculation: 18,669 (FY 2020 estimated renewal receipts) x
93 percent = 17,362 estimated FY 2020 renewal approvals.

Table 14--Projected Total Annual Form I-765 Receipts and Approvals for Aliens Temporarily Released on Orders of
Supervision, FYs 2020 to 2029
----------------------------------------------------------------------------------------------------------------
Initial Renewal
Fiscal year ---------------------------------------------------------------
Receipts Approvals Receipts Approvals
----------------------------------------------------------------------------------------------------------------
2020............................................ 5,629 4,728 18,669 17,362
2021............................................ 5,561 4,671 18,053 16,789
2022............................................ 5,494 4,615 17,457 16,235
2023............................................ 5,428 4,560 16,881 15,699
2024............................................ 5,363 4,505 16,324 15,181
2025............................................ 5,299 4,451 15,785 14,680
2026............................................ 5,235 4,398 15,264 14,196
2027............................................ 5,173 4,345 14,761 13,727
2028............................................ 5,110 4,293 14,274 13,274
2029............................................ 5,049 4,241 13,802 12,836
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

This proposed rule would eliminate the eligibility for employment
authorization for aliens temporarily released on orders of supervision
with one exception. The exception is for aliens for whom DHS has
determined removal is impracticable because all countries from which
DHS has requested travel documents have affirmatively declined to issue
such documents. In order to estimate the number of aliens whose removal
is impracticable for the reason stated, USCIS obtained data from ICE on
the number of aliens released from custody who have been unable to
obtain travel documents over the last 5 fiscal years. Table 15 shows
the number of aliens temporarily released on orders of supervision
denied a travel document in the corresponding fiscal year. DHS
estimates this proposed rule would result in fewer aliens temporarily
released on orders of supervision who are eligible for employment
authorization and would result in a maximum of 459 aliens remaining
eligible for an employment authorization under the exception.

Table 15--Aliens Released From ICE Custody, Unable To Obtain Travel
Documents, FY 2015 to FY 2019
------------------------------------------------------------------------
Fiscal year Total
------------------------------------------------------------------------
2015.................................................... 369
2016.................................................... 411
2017.................................................... 324
2018.................................................... 530
2019.................................................... 659
---------------
5-year Average........................................ 459
------------------------------------------------------------------------
Source: DHS-ICE ERO, LESA Statistical Tracking Unit.

As noted in the preamble, DHS is proposing to consider the alien's
criminal history, including but not limited to criminal activities
subsequent to his or her release on an order of supervision in
determining whether the alien warrants DHS's favorable exercise of
discretion to obtain an EAD. While there are aliens with an order of
supervision who are known convicted criminals, DHS is unable to
precisely estimate the number of aliens that could potentially be
denied an EAD as a matter of discretion should this proposed rule be
promulgated as a final rule. DHS is proposing to expressly consider the
alien's criminal history as a factor in determining whether the alien
warrants a favorable exercise of discretion in granting an EAD. The
discretionary analysis is case specific and typically assessed after an
officer has determined that the alien meets all applicable threshold
eligibility requirements. It involves the review of all relevant,
specific facts and circumstances in an individual case and weighing all
the positive factors present in a particular case against any negative
factors in the totality of the record. Further, DHS does not know the
number of excepted aliens that would be denied as a matter of
discretion because of subsequent criminal convictions. For these
reasons, we cannot estimate how many aliens would be denied as a matter
of discretion based on criminal history.
Aliens Granted CAT Deferral of Removal
DHS also proposes to revise the (a)(10) employment authorization
category to include aliens who are granted CAT deferral of removal as
employment authorized based solely on the grant of deferral. Table 16
shows the number of CAT cases granted deferral of removal for FY 2014
to FY 2018.\75\ Since FY 2015, the number of CAT cases granted deferral
of removal has trended upward reaching a high of 177 cases in FY 2018.
The 5-year average number of cases is approximately 147.
---------------------------------------------------------------------------

\75\ The Department of Justice Statistics Yearbook website was
last updated on August 30, 2019 with FY 2018 data. The analysis will
be updated with FY 2019 when it becomes available.

[[Page 74228]]

Table 16--Cases Granted CAT Deferral of Removal, FY 2014-FY 2018
------------------------------------------------------------------------
Fiscal year Cases
------------------------------------------------------------------------
2014.................................................... 121
2015.................................................... 121
2016.................................................... 140
2017.................................................... 175
2018.................................................... 177
---------------
5-year average........................................ 147
------------------------------------------------------------------------
Source: Department of Justice Statistics Yearbook, https://www.justice.gov/eoir/statistical-year-book.

The population of aliens who have been granted deferral of removal
based on the regulations implementing CAT are currently regulated to
apply for employment authorization under the (c)(18) category.
Currently, USCIS does not have a breakout for the number of aliens who
have been granted CAT deferral of removal who have applied or been
approved for an initial or renewal EAD. Under the proposed rule, this
population would be employment authorized based solely on such a grant
and would only need to apply for the physical EAD card under the
(a)(10) category if they want a document evidencing their employment
authorization pursuant to the grant of deferral of removal.
Estimated Eligible Employment Authorizations
Based on the exception (459) and the grant of CAT deferral of
removal exception (147), DHS estimates an upper bound estimate for
initial (c)(18) EAD approvals that would remain eligible for employment
authorization under this rule in the future is 606 annually. DHS
recognizes this upper bound estimate does not take into account the
number of aliens who would no longer be eligible due to subsequent
convictions. DHS also does not know how many of these aliens would be
eligible or ineligible under the economic necessity requirement or the
number that would apply for or be denied for other considerations, such
as the alien's compliance with their order of supervision conditions,
and the alien's criminal history, including but not limited to any
criminal arrests, charges, or convictions subsequent to the alien's
release from custody on an order of supervision. DHS recognizes that if
any of the 459 potential approvals who may fall under the exception do
not apply for work authorization or are denied employment authorization
that the upper bound of 606 would be an overestimate. Thus, we use an
upper bound estimate of 606 assuming 100 percent of aliens temporarily
released on orders of supervision who have been unable to obtain travel
documents would remain employment eligible under this rule, because
choosing any other upper bound would be speculative (Table 17(B) column
A). We use a lower bound estimate of 147 (Table 17(A) column A) since
all aliens who are granted CAT deferral of removal would continue to be
employment authorized. These upper and lower bound initial receipts
estimates are applied, unchanged, into the future. Although initial
receipts overall have been declining (Table 12), the upper and lower
bounds depend on the average number of aliens released from ICE custody
who are unable to obtain travel documents and aliens granted CAT
deferral of removal, both of which have experienced periods of
stability and growth over their respective five-year periods of
analysis (Tables 15 and 16). For this analysis, DHS relies on the five-
year averages for these populations as there are various factors
outside of this rulemaking may result in a decline or rise of in the
number of aliens identified as unable to obtain travel documents or
granted CAT deferral of removal. However, DHS cannot predict with
certainty at this time if the trend in the size of these populations
would increase, decrease, or remain stable. Therefore, DHS uses the
respective 5-year averages for this analysis.
DHS estimates that the lower bound share of initial EADs under the
baseline that would continue to be eligible for renewal under this
proposed rule ranges from 3.1 percent in FY 2020 to 3.5 percent in FY
2029 (Table 17(A) column C).\76\ Under the assumption that the same
share of initial approvals would be eligible as renewals, we multiply
the renewal receipt and approval populations by these percentages to
obtain the corresponding lower bound renewal EAD estimates for each
fiscal year (Table 17(A) columns E and G). Further, the upper bound is
also estimated assuming that the same share of initial approvals would
be eligible as renewals. Table 17(B) repeats the estimates for the
upper bound populations for initials and renewals.
---------------------------------------------------------------------------

\76\ Calculations: For example, for FY2020--(147 estimated lower
bound/4,728 projected number of initial approvals) x 100 = 3.1
percent (rounded). 147 estimated upper bound/4,241 projected number
of initial approvals) x 100 = 3.5 percent (rounded).
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 74229]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.088

BILLING CODE 9111-97-C
DHS recognizes that the projected lower bound range of 449 to 538
for renewal approvals may not fully account for the number of aliens
who would no longer be eligible for employment authorization due to the
proposed E-Verify requirement if their employers are not enrolled and
opt not to enroll in E-Verify, and if they are unable to find
alternative employment with an E-Verify employer. Some renewal
applicants may also not be currently employed and therefore would not
meet the new requirements for renewal. Additionally, DHS does not know
how many of these aliens would be eligible under the economic necessity
requirement or determined not to warrant employment authorization as a
matter of discretion due to subsequent convictions. DHS recognizes that
if any of the estimated range of 449 to 538 renewal receipts do not
apply for employment authorization or are denied employment
authorization that this lower bound could be even lower.

[[Page 74230]]

Renewal Applicants for Employment Authorization--E-Verify
DHS proposes to allow aliens on orders of supervision who are
granted employment authorization after the effective date of the final
rule to have their employment authorization renewed only if they meet
the exception and they establish that they are employed by a U.S.
employer who is a participant in good standing in DHS's employment
eligibility verification system (E-Verify) by providing their U.S.
employer's E-Verify Company Identification Number and the employer's
name as listed in E-Verify.
Since this rule proposes to eliminate eligibility for employment
authorization for aliens temporarily released on orders of supervision,
the impact on the renewal population would depend on which aliens
remain eligible and if the alien's employer already participates in E-
Verify or would be willing to enroll and participate in E-Verify if the
employer is not enrolled. Because of the uncertainty regarding
eligibility, DHS is unable to estimate a range for the renewal
population that would be impacted by this provision and attempting to
do so would be speculative. However, DHS acknowledges there would be
renewal applicants who would be impacted by this provision.
Employer Population
DHS recognizes that this proposed rule would impact employers who
currently, or will in the future, employ (c)(18) alien workers.
However, DHS cannot precisely estimate the number of employers that
could incur costs because (c)(18) employment authorization is
considered to be ``open market,'' where alien workers are not tied to a
specific employer. Such employment also does not require a Labor
Condition Application (LCA) or a Temporary Labor Certification (TLC)
from the U.S. Department of Labor (DOL), or other employer data at any
point in the EAD process (initial, renewal, or replacement stage). DHS
recognizes that many factors influence whether an employer participates
in the E-Verify program. While E-Verify is a free, voluntary program,
some employers are required to enroll in the program as a condition of
federal contracting, or as a requirement of state legislation or other
applicable laws. However, DHS cannot predict the number of employers
who would use E-Verify or how many would experience labor turnover due
to this proposed rule. Further, DHS does not know the number of
employers that would choose to enroll in E-Verify to retain their
(c)(18) renewal alien employees or the overall number of employees for
whom these entities would create an E-Verify case, should they enroll.
DHS is also unable to determine the number of employers whose (c)(18)
alien employees would remain employment eligible as a result of this
proposed rule. DHS welcomes public comment or data on employers who
enroll in the E-Verify program to retain (c)(18) alien renewal
employees as well as the overall number of employees for whom employers
would create E-Verify cases, should they enroll employees. DHS notes
that this provision may act as a barrier to a company hiring or
continuing to employ a (c)(18) employment authorized alien should the
company make the choice to not enroll in E-Verify. Such barriers
contribute to the cost calculation of this rule by increasing the
potential for turnover costs incurred by U.S. businesses--even in
situations where a (c)(18) employee remains employment authorized.
4. Transfers, Costs and Benefits of the Proposed Rule
Transfers and Costs
This section presents the costs and benefits associated with the
proposed rule. The impacts of the proposed provisions are estimated in
comparison with a baseline that assumes no proposed action will be
implemented.
Proposal Regarding EAD Eligibility
DHS anticipates that revising eligibility and introducing new
evidentiary requirements for (c)(18) EADs could have several impacts,
including potential lost earnings to alien workers temporarily released
on an order of supervision after receiving a final order of removal,
the cost associated with an increase of a 30 minute time burden to
complete Form I-765, as well as the costs of filing an additional form
(Form I-765WS) and submitting biometrics.
The proposed rule is estimated to result in a reduction in the
number of aliens temporarily released from custody on an order of
supervision that are eligible for EADs. The impacts of reducing the
number of aliens temporarily released on orders of supervision that are
eligible for EADs include both potential distributional impacts
(transfers) and costs. USCIS uses lost compensation to aliens
temporarily released on an order of supervision that are no longer
eligible for EADs as a measure of the impact of this change--either as
distributional impacts (transfers) from these aliens to others or as a
proxy for businesses' cost for lost productivity.
Companies may incur opportunity costs by having to choose the next
best alternative to filling a job an alien temporarily released on
orders of supervision would have filled. DHS is unable to determine
what an employer's next best alternative may be for those companies. As
a result, DHS does not know the portion of overall impacts of this rule
that are transfers or costs. If companies can find replacement labor
for the positions the aliens temporarily released on orders of
supervision would have filled, removing EAD eligibility for these
aliens would result in primarily distributional effects in the form of
transfers from aliens temporarily released on orders of supervision to
others that are currently in the U.S. labor force (or workers induced
to return to the labor market), possibly in the form of additional work
hours or overtime pay. DHS acknowledges that there may be additional
opportunity costs to employers such as additional costs associated with
searching for new employees. If companies cannot find reasonable
substitutes for the labor the aliens temporarily released on orders of
supervision would have provided, removing EAD eligibility for these
aliens would primarily result in costs to those companies through lost
productivity and profits.
DHS has no information on wages or occupations of alien workers
temporarily released on orders of supervision, at the initial or
renewal stage, since these alien workers obtain an open-market EAD that
does not include or require any data on their employment.
The federal minimum wage is currently $7.25.\77\ The use of the
federal minimum wage is grounded in the notion that most of the
relevant EAD holders would not have been in the labor force long and
would thus not be expected to earn relatively high wages. However, in
this proposed rulemaking, we rely on the ``effective'' minimum wage of
$11.80. As is reported by The New York Times ``[t]wenty-nine states and
the District of Columbia have state-level minimum hourly wages higher
than the federal [minimum wage],'' as do many city and county
governments. This analysis in The New York Times estimates that ``the
effective minimum

[[Page 74231]]

wage in the United States . . . [was] $11.80 an hour in 2019.'' \78\
DHS accounts for worker benefits by calculating a benefits-to-wage
multiplier using the most recent DOL, Bureau of Labor Statistics (BLS)
report detailing the average employer costs for employee compensation
for all civilian workers in major occupational groups and industries.
DHS estimates the benefits-to-wage multiplier is 1.46 and, therefore,
is able to estimate the full opportunity cost per applicant, including
employee wages and salaries and the full cost of benefits such as paid
leave, insurance, and retirement, etc.\79\ Although the federal minimum
wage could be considered a lower bound income for the population of
interest, DHS calculates the total rate of compensation for the
effective minimum hourly wage is $17.23, which is 62.7 percent higher
than the federal minimum wage.\80\
---------------------------------------------------------------------------

\77\ See 29 U.S.C. 206--Minimum wage, available at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title29/html/USCODE-2011-title29-chap8-sec206.htm (accessed May 19, 2020). See also U.S. Department
of Labor, Wage and Hour Division. The minimum wage in effect as of
May 19, 2020. Available at https://www.dol.gov/general/topic/wages/minimumwage.
\78\ ``Americans Are Seeing Highest Minimum Wage in History
(Without Federal Help)'' Ernie Tedeschi, The New York Times, April
24, 2019. Accessed at https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited
August 21, 2020).
\79\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
= $37.10/$25.47 = 1.458 = 1.46 (rounded). See Economic News Release,
Employer Cost for Employee Compensation (March 2020), U.S. Dept. of
Labor, BLS, Table 1. Employer costs per hour worked for employee
compensation and costs as a percent of total compensation: Civilian
workers, by major occupational and industry group. March 19, 2020,
available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (last visited March 24, 2020).
\80\ Calculations (1) for effective minimum wage: $11.80 hourly
wage x benefits burden of 1.46 = $17.23; (2) (($17.23 wage-$10.59
wage)/$10.59)) wage = 0.627, which rounded and multiplied by 100 =
62.7 percent.
---------------------------------------------------------------------------

DHS does not rule out the possibility that some portion of the
population might earn the average wage for all occupations, but without
empirical information, DHS believes that including a range with the
lower bound relying on the effective minimum wage is justifiable.
Therefore, this analysis uses both the effective minimum hourly wage
rate of $11.80 to estimate a lower bound and an average wage rate for
all occupations of $25.72 as an upper bound in consideration of the
variance in average wages across states.\81\ Therefore, DHS calculates
the average total rate of compensation for all occupations as $37.55
per hour, where the mean hourly wage is $25.72 per hour worked and
average benefits are $11.83 per hour.\82\ All of the quantified
estimates of costs and transfer payments in this analysis incorporate
lower and upper bound ranges based on the effective minimum hourly wage
and the average hourly wage across all occupations.
---------------------------------------------------------------------------

\81\ The average wage for all occupations is found Department of
Labor, Bureau of Labor Statistics, May 2019 National Occupational
Employment and Wage Estimates. The data is found at: https://www.bls.gov/oes/2019/may/oes_nat.htm#00-0000 (last visited March 19,
2020).
\82\ The calculation of the weighted mean hourly wage for
applicants: $25.72 per hour x 1.46 = $37.5512 = $37.55 (rounded) per
hour.
---------------------------------------------------------------------------

Estimated impacts in this analysis include lost potential earnings
to applicants. Since the current validity period of a (c)(18) EAD is up
to one year, DHS multiplied the total rate of compensation using the
average effective minimum hourly wage rate of $17.23 and the average
hourly wage rate across all occupations of $37.55 by 2,080 hours, the
typical annual number of work hours, to estimate the annual earnings of
$35,838 and $78,106, respectively, for each applicant.\83\ Table 18
shows the two population ranges for initial and renewal approvals for
the two ranges of wage estimates for aliens temporarily released on
orders of supervision and the corresponding potential lost earnings.
Table 18(A) shows cost estimates for the lower and upper bound range of
initial EAD approvals based on the lower bound wage annual earnings of
$35,838. The total earnings for each population under the rule based on
the projections developed in the ``Population'' section are reported in
Columns B, D and F. Columns G and H present the potential lost
earnings, by subtracting, from the current baseline (column F), the
potential earnings from rule populations (columns B and D). Similarly,
Table 18(B) repeats the estimates for the lower and upper bound range
of initial EAD approvals based on the upper bound (average) wage annual
earnings of $78,106. Tables 18(C) and 18(D) repeat the estimates from
Table 18(A) and 18(B) for the lower and upper bound ranges of renewal
EAD approvals based on the lower and upper bound wage annual earnings,
respectively.
---------------------------------------------------------------------------

\83\ Calculations: 2,080 typical annual work hours x $17.23 the
total rate of compensation using the average state minimum wage =
$35,838 (rounded). 2,080 typical annual work hours x $37.55 the
total rate of compensation using the average wage = $78,106
(rounded).

---------------------------------------------------------------------------

[[Page 74232]]

BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP19NO20.089

[[Page 74233]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.090

BILLING CODE 9111-97-C
DHS uses the lost compensation to aliens temporarily released on
orders of supervision as a measure of the overall impact of removing
eligibility for a (c)(18) EAD--either as distributional impacts
(transfers) or as a proxy for businesses' cost for lost productivity.
It does not include additional costs to businesses for lost profits and
opportunity costs or the distributional impacts for those in an
applicant's support network. As shown in Table 18, the potential lost
earnings depend on the number of aliens released temporarily on orders
of supervision who remain eligible for an EAD and continue to work, as
well as their wage rate. Over the 10-year period from FY 2020 to FY
2029, the total lost earnings would range from $6,038,201,268 to
$14,716,520,096.\84\ Annualized at 7 percent, lost earnings for initial
and renewal EAD holders would range from $614,037,170 to $
1,495,358,741 (Table 22).\85\
---------------------------------------------------------------------------

\84\ Calculations: $1,388,614,986 (10-year total initial upper
bound costs) + $4,649,586,282 (10-year total renewal upper bound
costs) = $6,038,201,268 (minimum 10-year total lower bound costs);
$3,384,879,722 (10-year total initial upper bound costs) +
$11,331,540,374 (10-year total renewal upper bound costs) =
$14,716,420,096 (maximum 10-year total upper bound costs).
\85\ An important assumption relied upon in this analysis is
that each holder of an approved EAD has entered the labor force and
is working (when the rule becomes effective). DHS relies on this
assumption on the grounds that individuals would not have expended
the direct filing and time-related opportunity costs of applying for
an EAD if they did not intend to recoup an economic benefit from
doing so. In reality, some EAD holders may not be employed for any
number of reasons--including normal labor market frictions--that
have nothing to do with this rule. In addition, DHS has received
information that some individuals seek an EAD for purposes of paper
documentation and may not intend to work.

---------------------------------------------------------------------------

[[Page 74234]]

EAD holders who would no longer be eligible to renew their
employment authorization under the proposed eligibility criteria in
this rule would incur lost earnings. Additionally, DHS acknowledges the
potential for additional lost compensation to renewal applicants if
their employers are not currently enrolled in E-Verify and opt not to
enroll in the E-Verify program. In such cases, renewal applicants could
lose earnings if they are unable to find employment with an employer
who participates in E-Verify.
DHS recognizes that, excluding the effects of inflation, earnings
generally rise over time and the earnings of EAD holders could be
larger in the future than estimated in this analysis. Moreover, since
EAD renewals, by necessity of order, follow in time after an initial
EAD approval, wages and, hence, total compensation, earned could be
higher for renewals. Accordingly, this effect could bias the estimate
of earnings losses downward. However, we see no tractable way at
present to incorporate this possibility into the quantified estimates.
DHS welcomes public comments and data concerning the
appropriateness of using the effective minimum wage rate as a lower
bound and the average wage rate as an upper bound for (c)(18) workers
and the resulting impacts presented.
In addition to the above quantified impacts, there could be
qualitative impacts for aliens on orders of supervision who would no
longer be eligible for employment authorization. For the (c)(18)
population that will not be able to renew their EAD or obtain an
initial EAD, there would likely be an impact in terms of lost income
which could pose economic hardships. Members of this population may
need to rely on their support networks for financial and social
assistance, which could involve, but may not be limited to, family
members and friends, religious and charitable organizations, private
non-profit providers, state and local governments, and NGOs. DHS
believes that the immediate indirect impact of this rule to an
applicant's support network is likely not significantly more than the
wages and benefits the applicant would have earned without this rule.
Costs to Applicants To Submit Biometrics
This rule proposes to codify a biometrics requirement for aliens
who file for an EAD under the (c)(18) category. Currently, all (c)(18)
applicants receive an appointment notice from USCIS to submit their
biometrics \86\ at an Application Support Center (ASC) to, among other
things, assist in identity verification and facilitate (c)(18) EAD card
production. They are also required to pay the $85 biometric services
fee.\87\ This rule would codify the requirement for aliens to submit
biometrics and pay the proposed $30 biometric services fee. The
biometrics requirement would apply to (c)(18) Form I-765 filers, for
both initial and renewal EAD applications. In addition, DHS proposes to
use the biometrics submitted by (c)(18) EAD applicants to screen for
criminal history.
---------------------------------------------------------------------------

\86\ At present, biometrics collection generally refers to the
collection of fingerprints, photographs, and signatures. See https://www.uscis.gov/forms/forms-information/preparing-your-biometric-services-appointment (describing biometrics as including
fingerprints, photographs, and digital signature) (last visited May
15, 2020).
\87\ USCIS was previously authorized to collect an $85 biometric
services fee. However, the recently promulgated fee rule
incorporated the biometric services costs into the underlying
immigration benefit request fees for which biometric services are
applicable in the recent fee rule and maintained a separate $30
biometric services fees for certain benefit requests. See DHS, U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, 85 FR 46788
(Aug. 3, 2020) (Fee Rule).
---------------------------------------------------------------------------

The submission of biometrics requires that aliens travel to an ASC
for the biometric services appointment. In past rulemakings, DHS
estimated that the average round-trip distance to an ASC is 50 miles,
and that the average travel time for the trip is 2.5 hours.\88\ The
cost of travel also includes a mileage charge based on the estimated 50
mile round trip at the 2020 General Services Administration (GSA) rate
of $0.58 per mile.\89\ Because an individual alien would spend 1 hour
and 10 minutes (1.17 hours) at an ASC to submit biometrics, summing the
ASC time and travel time yields 3.67 hours.\90\ At the lower and upper
wage bounds, the opportunity costs of time to submit biometrics
services are $63.23 and $137.81.\91\ The travel cost is $29, which is
the per mileage reimbursement rate of $0.58 multiplied by 50-mile
travel distance. Summing the time-related and travel costs generates a
per person biometrics submission cost of $92.23 at the lower bound wage
and $166.81 at the upper bound wage.\92\ Combining these costs with the
biometric services fee totals a per person biometrics submission cost
of $122.23 and $196.81 at the respective lower and upper wage
rates.\93\
---------------------------------------------------------------------------

\88\ See ``Employment Authorization for Certain H-4 Dependent
Spouses; Final rule,'' 80 FR 10284 (25 Feb. 2015); and ``Provisional
and Unlawful Presence Waivers of Inadmissibility for Certain
Immediate Relatives; Final Rule,'' 78 FR 536, 572 (3 Jan. 2013).
\89\ The General Services Administration mileage rate of $0.58,
effective January 1, 2020, available at: https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last visited May 7, 2020).
\90\ Source for biometric time burden estimate: Paperwork
Reduction Act (PRA) Supporting Statement for Form I-485 (OMB control
number 1615-0023). The PRA Supporting Statement can be found at
Question 12 on Reginfo.gov at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201706-1615-001.
\91\ Calculations: 3.67 (total time in hours to submit
biometrics) x $12.05 (prevailing wage for 1 hour of work) = $44.22;
3.67 (total time in hours to submit biometrics) x $37.55 (average
wage for 1 hour of work) = $137.81.
\92\ Calculations: $29 (cost of travel) + $63.23 (time-related
costs at lower bound wage) = $92.23; $29 (cost of travel) + $137.81
(time-related costs at upper bound wage) = $166.81.
\93\ Calculations: $92.23 (total time-related cost at lower
bound wage) + $30 (biometrics fee) = $122.23; $166.81 total (time-
related costs at upper bound wage) + $30 (biometrics fee) = $196.81.
---------------------------------------------------------------------------

Table 19 shows the two population ranges for initial and renewal
receipts for the two ranges of wage estimates for aliens on orders of
supervision and the corresponding total cost to submit biometrics.
Table 19(A) shows cost estimates for the lower and upper bound range of
initial EAD receipts at the lower bound submission cost of $122.23. The
total costs for Columns C and E provide the range of undiscounted costs
for the lower bound. Similarly, Table 19(B) repeats the estimates for
the lower and upper bound range of initial EAD receipts based on the
upper bound submission cost of $196.81. Tables 19(C) and 19(D) repeat
these estimates for the lower and upper bound ranges of renewal EAD
receipts based on the lower and upper bound submission costs,
respectively.
BILLING CODE 9111-97-P

[[Page 74235]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.091

[[Page 74236]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.092

BILLING CODE 9111-97-C
As shown in Table 19, the cost to submit biometrics depends on the
number of aliens temporarily released on orders of supervision who
apply for an EAD and their wage rate. Over the 10-year period from FY
2020 to FY 2029, the total cost to submit biometrics would range from
$824,075 to $5,476,238.\94\ Annualized at 7 percent, the estimated
costs to submit biometrics would range from $83,148 to $552,741 (Table
22).
---------------------------------------------------------------------------

\94\ Calculations: $179,678 (10-year total initial lower bound
costs) + $644,397 (10-year total renewal lower bound costs) =
$824,075 (minimum 10-year total lower bound costs); $1,192,669 (10-
year total initial upper bound costs) + $4,283,570 (10-year total
renewal upper bound costs) = $5,476,238 (maximum 10-year total upper
bound costs).
---------------------------------------------------------------------------

Cost of Forms
For those aliens who remain eligible to be employment authorized,
the proposed rule would increase the time burden on the population of
applicants applying for employment authorization. This rule also
proposes to add filing

[[Page 74237]]

procedures and evidentiary requirements for aliens on orders of
supervision who are seeking an initial EAD or renewing an EAD. The
proposed new requirements include submitting a Form I-765WS, to
establish the alien's economic necessity for employment and, for
renewal applicants only, the name of the alien's U.S. employer as
listed in E-Verify and that employer's E-Verify Company Identification
Number.
Currently, DHS estimates the time burden for completing Form I-765
is 4 hours and 30 minutes (4.5 hours).\95\ For aliens on orders of
supervision who continue to be eligible and apply for employment
authorization after this rule is final, this proposed rule would
increase the time burden of Form I-765 by 30 minutes (0.5 hours) for a
total of 5 hours.\96\ This change would increase the opportunity cost
of time for each application by approximately $8.62 based on the
effective minimum hourly wage and by about $18.78 based on the average
wage for all occupations.\97\
---------------------------------------------------------------------------

\95\ See Instructions for Form I-765, December 26, 2019,
available at https://www.uscis.gov/i-765 (last visited April 21,
2020).
\96\ The additional 30 minutes is an average estimate across all
respondents completing Form I-765 to review additional language in
the instructions and gather required supporting documentation.
\97\ Calculations: 0.5 (burden hours) x $17.23 (effective
minimum hourly wage for 1 hour of work) = $8.62 (rounded). 0.5
(burden hours) x $37.55 (average wage for all occupations for 1 hour
of work) = $18.78 (rounded).
---------------------------------------------------------------------------

This proposed rule would also make it a requirement to submit Form
I-765WS for aliens applying for employment authorization under the
(c)(18) category. Currently, proving the existence of economic
necessity to be employed is listed as a discretionary factor for
consideration, but it is not a requirement. In this proposed rule, DHS
now makes this a mandatory requirement. DHS estimates the current time
burden for completing Form I-765WS is 30 minutes (0.5 hours).\98\ For
aliens temporarily released on orders of supervision who continue to be
eligible and apply for employment authorization after the rule is
final, the proposed rule would increase the opportunity cost of time
for each applicant by $8.62 based on the effective minimum hourly wage
and $18.78 based on the average wage for all occupations.\99\ Combining
the new costs of the I-765 and I-765WS, the total per person increased
time burden would add costs of $17.23 and $37.55 at the respective
lower and upper bound wage rates.
---------------------------------------------------------------------------

\98\ See Instructions for Form I-765, December 26, 2019,
available at https://www.uscis.gov/i-765 (last visited April 21,
2020). Calculation: 0.5 hours (added time to file I-765) x $17.23
(effective minimum hourly wage for 1 hour of work) = $8.62
(rounded).
\99\ Calculations: 0.5 hours (time to file I-765WS) x $17.23
(effective minimum hourly wage for 1 hour of work) = $8.62
(rounded). 0.5 hours (time to file I-765WS) x $37.55 (average wage
for all occupations for 1 hour of work) = $18.78 (rounded).
---------------------------------------------------------------------------

Table 20 shows the additional filing time burden-costs for Forms I-
765 and I-765WS for the two population ranges for initial and renewal
receipts. Table 20(A) shows cost estimates for the lower and upper
bound range of initial EAD receipts based on the lower bound additional
time burden cost of $12.05. The total costs for Columns C and E provide
the range of undiscounted costs for the lower bound wage. Similarly,
Table 20(B) repeats the estimates for the lower and upper bound range
of initial EAD receipts based on the upper bound additional time burden
cost of $37.55. Tables 20(C) and 20(D) repeat these estimates for the
lower and upper bound ranges of renewal EAD receipts based on the lower
and upper bound wage time burden costs, respectively.
BILLING CODE 9111-97-P

[[Page 74238]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.093

[[Page 74239]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.094

BILLING CODE 9111-97-C
As indicated in the table, the estimated total opportunity costs of
time incurred as a result of increased time burden for completing the
forms over the 10-year period from FY 2020 to FY 2029 would range from
about $116,165 to $1,044,829.\100\ There would be no change in the
estimated time burden for aliens temporarily released on orders of
supervision for ICE Form I-220B. ICE completes Form I-220B and it is
currently already submitted during the employment authorization
application process.
---------------------------------------------------------------------------

\100\ Calculations: $25,328 (10-year total initial lower bound
costs) + $90,837 (10-year total renewal lower bound costs) =
$116,165 (minimum 10-year total lower bound costs); $227,553 (10-
year total initial upper bound costs) + $817,276 (10-year total
renewal upper bound costs) = $1,044,829 (maximum 10-year total upper
bound costs).
---------------------------------------------------------------------------

Costs to Employers
DHS anticipates that revising eligibility for aliens temporarily
released on orders of supervision could lead to a loss of employment
resulting in turnover costs for employers. Additionally, the proposed
E-Verify requirement for renewal applicants would also result in costs
to employers who are not currently enrolled in the E-Verify program and
would seek to retain their (c)(18) worker(s). The population that could
involve costs to employers involves specifically the renewal
population, and the development of such impacts embodies two different
provisions: (i) The provisions regarding eligibility in general, and
(ii) the E-Verify requirement for aliens seeking to renew an EAD.
I. Unquantified Turnover Costs
Some aliens who have final orders of removal but are temporarily
released from custody on orders of supervision would eventually be out
of the labor force even in the absence of this proposed rule. Since
these aliens have been ordered removed, the federal government makes
efforts to remove them from the United States on an ongoing basis
regardless of employment authorization. For aliens who would no longer
be eligible for employment authorization under this rule because they
do not meet the proposed exception--DHS has not determined that the
removal of such aliens is impracticable because ICE has not identified
them as unable to obtain travel documents--this rule would affect the
timing of when such alien workers would be removed from the labor
force, which could vary. This proposed rule would result in employers
incurring labor turnover costs earlier in comparison to the state of
affairs in the absence of the proposed rule. Since the timing of when
alien workers would be removed from the labor force is variable
regardless of whether this proposed rule becomes final or not, DHS is
unable to establish a baseline estimate of the labor turnover costs
employers currently incur. In addition, DHS cannot quantify the labor
turnover costs that employers would incur earlier than they would
otherwise due to the proposed rule because there

[[Page 74240]]

is no way to know the timing for when aliens would be removed.
II. Employer Costs of E-Verify Requirement for Renewal Applicants
For renewal applicants, employment authorization would only be
granted to applicants who continue to meet the exception, demonstrate
economic necessity, do not have subsequent criminal convictions, are
employed by a U.S. employer who is a participant in good standing in
the E-Verify program, and establish that they warrant a favorable
exercise of discretion. The E-Verify program is a DHS web-based system
that allows enrolled employers to confirm the identity and eligibility
of their employees to work in the United States by electronically
matching information provided by employees on the Employment
Eligibility Verification (Form I-9) against records available to DHS
and the Social Security Administration (SSA).\101\ DHS does not charge
a fee for employers to participate in the E-Verify Program and create
cases to confirm the identity and employment eligibility of newly hired
employees. EAD renewal applications would be denied for those aliens
who cannot establish that they are employed by an E-Verify employer and
their $410 filing fee would not be refunded. DHS does not know the
number of renewal applicants who would incur this cost once the rule is
final.
---------------------------------------------------------------------------

\101\ See E-Verify, available at https://www.e-verify.gov/ (last
visited May 29, 2019).
---------------------------------------------------------------------------

Although there is no fee to use E-Verify, this proposed requirement
would result in costs to newly enrolling employers. Employers who would
newly enroll in the E-Verify program would incur startup enrollment or
program initiation costs as well as additional opportunity costs of
time for ongoing annual training for the E-Verify program. DHS assumes
that employers who are currently participating in the E-Verify program
would not incur these costs since they previously incurred enrollment
costs and would continue to participate in ongoing annual training
regardless of this proposed rule.\102\ Additionally, DHS expects that
only newly enrolled employers would incur new costs for verifying the
identity and work authorization of all of their newly hired employees,
including any new (c)(18) workers as a result of this proposed rule.
For employers currently enrolled in E-Verify who choose to hire a
(c)(18) alien worker, the proposed rule would not cause such employers
to incur new costs since they already must use E-Verify for all newly
hired employees as of the date they signed the E-Verify Memorandum of
Understanding (MOU).\103\ Therefore, with or without the proposed rule,
an employer already enrolled in the E-Verify program that chooses to
hire a (c)(18) alien worker would incur the opportunity cost of time to
verify any newly hired employees.
---------------------------------------------------------------------------

\102\ Employers already participating in E-Verify likely already
complete ongoing annual training because they voluntarily chose to
enroll or because of rules or regulations beyond the scope of this
proposed rule. DHS anticipates that such employers would continue to
use E-Verify regardless of their decision to hire (c)(18) workers or
not.
\103\ See About E-Verify, Questions and Answers, April 9, 2014
https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0 (last visited April 16, 2020).
---------------------------------------------------------------------------

Data show that some employers currently use E-Verify to confirm the
identity and employment eligibility of (c)(18) alien workers. Further,
the requirement to participate in the E-Verify program is not new as
certain employers are required to enroll in the program as a condition
of Federal contracting, or as a condition of business licensing under
state legislation or other applicable law or regulation.\104\
---------------------------------------------------------------------------

\104\ Certain states (for example Alabama, Arizona, Mississippi,
and South Carolina) and certain Federal contracts subject to the
Federal Acquisition Regulation found at 48 CFR, Subpart 22.18
require the use of E-Verify.
---------------------------------------------------------------------------

To renew an EAD, the proposed rule would require that (c)(18) alien
workers be employed by employers enrolled in E-Verify and in good
standing. Therefore, the proposed rule would result in additional costs
for employers that hire (c)(18) alien workers only if such employers
are not currently enrolled in the E-Verify program and who choose to
retain their (c)(18) workers.
For employers that have hired or intend to hire (c)(18) alien
workers but are not enrolled in the E-Verify program, such employers
would incur opportunity costs of time to enroll. Participating in the
E-Verify program and remaining in good standing requires employers to
enroll in the program online,\105\ electronically sign the associated
MOU with DHS that sets the terms and conditions of participation in the
program, and create E-Verify cases for all newly hired employees. The
MOU requires employers to abide by lawful hiring procedures and to
ensure that no employee will be unfairly discriminated against as a
result of E-Verify.\106\ If an employer violates the terms of this
agreement, it is grounds for immediate termination from the
program.\107\ Additionally, employers are required to designate and
register at least one person that serves as an E-Verify administrator
on their behalf.
---------------------------------------------------------------------------

\105\ See The Enrollment Process at https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process (last visited
February 12, 2019).
\106\ An employer that discriminates in its use of E-Verify
based on an individual's citizenship status or national origin may
also violate the INA's anti-discrimination provision, at 8 U.S.C.
1324b.
\107\ See USCIS, The E-Verify Memorandum of Understanding for
Employers, available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf.
---------------------------------------------------------------------------

For this analysis, DHS assumes that each employer participating in
the E-Verify program designates one HR specialist to manage the program
on its behalf. Based on the most recent Paperwork Reduction Act (PRA)
Information Collection Package for E-Verify, DHS estimates the time
burden for an HR specialist to undertake the tasks associated with the
E-Verify program. DHS estimates the time burden for an HR specialist to
complete the enrollment process is 2 hours 16 minutes (2.26 hours), on
average, to provide basic company information, review and sign the MOU,
take a new user training, and review the user guides.\108\ Once
enrolled in the E-Verify program, DHS estimates the time burden is 1
hour to complete ongoing annual training on new features and system
updates.\109\
---------------------------------------------------------------------------

\108\ The USCIS Office of Policy and Strategy, PRA Compliance
Branch estimates the average time burdens. See PRA E-Verify Program
(OMB control number 1615-0092), May 24, 2016. The PRA Supporting
Statement can be found under Question 12 at https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last visited
May 29, 2019).
\109\ Id.
---------------------------------------------------------------------------

Once enrolled in the E-Verify program, the employer is responsible
for ensuring that the employment verification process adheres to the
requirements of the MOU and the employer verifies that all newly hired
employees are employment authorized. After completing the Form I-9, the
employer must enter the newly hired employee's information in E-Verify
where it is checked against records available to SSA and DHS. After
checking an employee's information against these records, E-Verify
returns the case processing results, which could either automatically
confirm the employee as employment authorized or return a tentative
non-confirmation (TNC). Receiving a TNC does not mean an employee is
not authorized to work in the United States; rather, it indicates there
is an initial system mismatch between the information the employer
entered in E-Verify from the employee's Form I-9 and the records
available to DHS or SSA. Employees receiving a TNC have the option to
contest (take action) or not contest (not take action)

[[Page 74241]]

to resolve the DHS and/or SSA TNC case result. E-Verify requires
employers to promptly inform the employee about the TNC and provide
instructions for contesting it. The E-Verify website also provides
detailed information about contesting the TNC.\110\
---------------------------------------------------------------------------

\110\ See the following for more detailed information https://www.e-verify.gov/employees/tentative-nonconfirmation-overview/how-to-correct-a-tentative-nonconfirmation (last visited May 29, 2019).
---------------------------------------------------------------------------

In the absence of specific population data on which entities would
continue to hire (c)(18) alien workers, it is only possible to
calculate an estimated average unit cost for an employer not currently
participating in E-Verify to hire one (c)(18) renewal alien worker. In
this analysis, DHS uses an hourly compensation rate for estimating the
opportunity cost of time for an HR specialist. DHS uses this occupation
as a proxy for those who might prepare and complete the verification
for an employer. DHS notes that not all employers may have an HR
specialist, but rather some equivalent occupation may prepare and
complete the verification and create the E-Verify case.
According to BLS data, the average hourly wage rate for HR
specialists is $32.58.\111\ DHS estimates the hourly compensation rates
by adjusting the average hourly wage rates by a benefit-to-wage
multiplier to account for the full cost of benefits such as paid leave,
insurance, and retirement. Based on the most recent report by the BLS
on the average employers' costs for employee compensation for all
civilian workers in major occupational groups and industries, DHS
estimates that the benefits-to-wage multiplier is 1.46.\112\ Therefore,
DHS calculates an average hourly compensation rate of $47.57 for HR
specialists.\113\ Applying this average hourly compensation rate to the
estimated time burden of 2.26 hours for the enrollment process, DHS
estimates an average opportunity cost of time for a new employer to
enroll in E-Verify is $107.51.\114\ DHS assumes the estimated
opportunity cost of time to enroll in the E-Verify program is a one-
time cost to employers. In addition, DHS estimates the opportunity cost
of time associated with 1 hour of ongoing annual training for newly-
enrolled entities would be $47.57 annually in the years following
enrollment.
---------------------------------------------------------------------------

\111\ See U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment and Wages, May 2019, Human Resources
Specialist (SOC #13-1071): https://www.bls.gov/oes/2019/may/oes131071.htm (last visited May 7, 2020).
\112\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
= $37.10/$25.47 = 1.457 = 1.46 (rounded). See Economic News Release,
``Employer Cost for Employee Compensation-- December 2019,'' (March
2020), U.S. Department of Labor, BLS, Table 1. Employer costs per
hour worked for employee compensation and costs as a percent of
total compensation: Civilian workers, by major occupational and
industry group. March 19, 2020, available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (last visited March 24,
2020).
\113\ Hourly compensation of $47.57 = $32.58 average hourly wage
rate for HR specialists x 1.46 benefits-to-wage multiplier.
\114\ Calculation: 2.26 hours for the enrollment process x
$47.57 total compensation wage rate for an HR specialist = $107.51.
---------------------------------------------------------------------------

Newly-enrolled employers would also incur opportunity costs of time
to enter employee information into the E-Verify system to confirm their
identity and work authorization. DHS estimates the time burden for an
HR specialist to submit a case in E-Verify is 7.74 minutes (or 0.129
hours).\115\ Therefore, DHS estimates the opportunity cost of time
would be approximately $6.14 per case.\116\
---------------------------------------------------------------------------

\115\ The USCIS Office of Policy and Strategy, PRA Compliance
Branch estimates the average time burdens. See Paperwork Reduction
Act (PRA) E-Verify Program (OMB control number 1615-0092), May 24,
2016. The PRA Supporting Statement can be found under Question 12 at
https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last
visited May 29, 2019).
\116\ Calculation: 0.129 hours to submit a query * $47.57 total
compensation wage rate for an HR specialist = $6.14.
---------------------------------------------------------------------------

DHS estimates the total first year cost for a new employer to
enroll in E-Verify and create a single E-Verify case in the E-Verify
system would be approximately $113.65.\117\ In subsequent years, DHS
estimates newly-enrolled employers would incur costs of $53.71, at
minimum, to maintain their account and create one new E-Verify case for
their (c)(18) worker.\118\ DHS recognizes that the actual cost to
newly-enrolled employers of using E-Verify would be higher since case
submissions would also include all newly hired employees, not just
(c)(18) workers. However, since DHS cannot predict how many employees
each employer would hire in the future, DHS cannot estimate how many
additional E-Verify cases an employer may expect to create. Employers
already enrolled in the E-Verify program who choose to hire (c)(18)
workers in subsequent years would incur costs even in the absence of
this proposed rule.
---------------------------------------------------------------------------

\117\ Calculation: $107.51 opportunity cost for a new entity to
enroll in E-Verify + $6.14 cost to submit a query into E-Verify =
$113.65.
\118\ Calculation: $47.57 one hour of annual training + $6.14
cost to submit a query into E-Verify = $53.71. E-Verify has a Work
Authorization Docs Expiring case alert that notifies employers that
an employee's EAD or Arrival-Departure Record (Form I-94) document
is expiring. The alert is a reminder for the employer to reverify
the employee. See About E-Verify Questions and Answers, Creating and
Managing Cases, page 2 (04/30/2018) at https://www.e-verify.gov/about-e-verify/questions-and-answers (last viewed Jul. 15, 2020).
---------------------------------------------------------------------------

Employers that are not participating in E-Verify face the binary
choice of participating in or not participating in the program. If the
employer who had hired a (c)(18) alien worker does not participate, the
employer faces the potential for labor turnover costs. If the employer
does participate, the employer incurs the cost of enrolling and
participating in the program and implementing the program requirements.
On one hand, since the EADs last only a year, there might be some
disincentive not to participate in E-Verify. However, as discussed in
the population section, DHS cannot make reliable estimates of the
number of employers that would enroll and participate in E-Verify, and
as such, cannot estimate total costs germane to this implementation.
III. Turnover Costs to Employers Who Currently Hire (c)(18) EAD Holders
In order to properly account for costs involving employers who have
hired aliens temporarily released on orders of supervision who are EAD
holders, DHS introduces the costs applicable to discuss labor turnover
and E-Verify in separate segments.
DHS anticipates this proposed rule would impose labor-related
turnover costs on U.S. employers who employ (c)(18) alien workers who
would remain eligible under this rule but are not enrolled in E-Verify
and opt not to enroll. Employers would incur labor turnover costs
because these alien workers would remain eligible for an initial EAD
under this rule but would not be eligible for a renewal EAD since they
would be unable to establish that they are employed by an E-Verify
employer. As a result, alien workers would no longer be able to work
and presumably employers would need to find a replacement worker. For
aliens who would remain eligible for an EAD under this rule, the
duration of time to remove aliens on orders of supervision from the
U.S. would likely be longer than average as DHS has determined that
removal for these aliens is impracticable because all countries from
which DHS has requested travel documents have affirmatively declined to
issue such documents. Therefore, employers who do not use or are
enrolled in E-Verify would incur turnover costs in cases where their
(c)(18) alien workers would remain eligible for an EAD under this rule.
However, U.S. employers who are not enrolled in E-Verify could avoid
turnover costs by choosing to enroll in the program. If an employer
chooses to

[[Page 74242]]

enroll in E-Verify, the employer would instead incur the associated
costs to enroll in the system, submit cases (for all newly hired
employees, not just (c)(18) workers), and maintain their account.
Employee turnover may cause employers to incur various direct and
indirect turnover costs. Direct turnover cost employers could incur
include those that involve separation and replacement costs. Separation
costs include exit interviews, severance pay, and assigning other
employees to temporarily cover the departing employee's duties and
functions, which may require overtime or temporary staffing.
Replacement costs typically include those related to advertising
positions, search and agency fees, screening applicants, interviewing,
background verification, employment testing, hiring bonuses, and
possible travel and relocation costs. Once hired, employers may incur
additional costs for training, orientation, and assessments.
Additionally, other direct costs may include loss of productivity and
possible reduced profitability due to operational and production
disruptions. Moreover, employers may incur indirect costs, including
loss of institutional knowledge, networking, and impacts to morale and
interpersonal work relationships. These indirect costs are more
difficult to measure.
DHS has reviewed recent research and literature on turnover costs.
While peer-reviewed research on turnover costs is not extensive, there
are several studies available which are cited repeatedly across various
reports focusing on specific locations and occupations, and measure
turnover costs in different ways. For example, a 2012 report published
by the Center for American Progress (``2012 CAP Survey'') reviewed
several dozen studies that considered both direct and indirect
costs.\119\ This survey found that turnover costs per employee ranged
from 10 to 30 percent of the salary for most salaried workers with an
average mid-point of about 20 percent of the worker's salary in total
labor turnover costs.
---------------------------------------------------------------------------

\119\ See ``There Are Significant Business Costs to Replacing
Employees,'' By Heather Boushey and Sarah Jane Glynn (2012), Center
for American Progress, at: https://www.americanprogress.org/issues/economy/reports/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/ (last visited Apr. 15, 2020).
---------------------------------------------------------------------------

In the absence of specific data on which employers hire (c)(18)
alien workers and use, or would enroll in, E-Verify, it is only
possible to calculate an estimated range of average per employee
turnover costs an employer not currently participating in E-Verify
could incur. In order to estimate labor turnover costs, DHS uses
estimated employee annual earnings of $35,838 based on the effective
minimum wage as a lower bound and $78,106 based on the average wage
developed previously in this analysis (see ``Proposal Regarding EAD
Eligibility'' section) and an upper bound. DHS multiplied each of these
estimated employee annual earnings by 20 percent in accordance with the
2012 CAP Survey. Using annual earnings based on the effective minimum
wage (lower bound), DHS estimates labor turnover costs would be
approximately $7,168 per worker and using the annual earnings based on
the average wage (upper bound), DHS estimates labor turnover costs
would be approximately $15,621 per worker.\120\ Turnover costs would be
higher if a U.S. employer that does not use or enroll in E-Verify
employs more than one (c)(18) alien worker who would remain eligible
under this rule. DHS recognizes that turnover costs would occur in the
year an EAD expires and, depending on the effective date of this rule
should it become finalized, employers who incur turnover costs may
incur them in up to two consecutive fiscal years.
---------------------------------------------------------------------------

\120\ Calculations: $35,838 x 20% = $7,168; $78,106 x 20% =
$15,621.
---------------------------------------------------------------------------

DHS is unable to predict how many employers would actually
participate in E-Verify in order to retain their (c)(18) alien workers
or the total number of employment authorizations they would confirm
through E-Verify should they choose to participate. DHS assumes that
employers would make a cost-benefit decision between incurring labor
turnover costs and incurring the current and future costs to enroll and
participate in E-Verify. DHS recognizes that an employer that enrolls
and participates in E-Verify would confirm employment authorization for
all new hires, not only their (c)(18) alien workers. Unlike the
development of the costs germane to forgone earnings, in which DHS
could at least deduce a range for the population based on some limited
data, doing so here would be completely speculative, and we do not
endeavor to rely on a range here.
I. Government Transfers
This proposed rule could reduce taxes paid to the federal
government (a transfer payment) in the short term. During the period of
vacancy for a job formerly held by the (c)(18) alien worker, the
federal government would not be collecting taxes.
In addition, in instances where an employer cannot hire replacement
labor for a position an alien on an order of supervision had or would
have filled, this proposed rule may result in a reduction in taxes paid
to the federal government. It is difficult to quantify income tax
losses because individual tax situations vary widely.\121\ However, DHS
estimates the potential reduction in tax revenue generated through
employment tax programs, namely Medicare and Social Security, which
have a combined tax rate of 7.65 percent (6.2 percent and 1.45 percent,
respectively).\122\ DHS notes that the total estimated reduction in tax
transfer payments from employees and employers to Medicare and Social
Security is 15.3 percent since both the employee and employer would not
pay their respective portions of Medicare and Social Security taxes
when a position remains unfilled by an alien on an order of supervision
who held or would have filled the position.\123\
---------------------------------------------------------------------------

\121\ More than 44 percent of workers pay no federal income tax
(Sept. 16, 2018) available at https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
\122\ The various employment taxes are discussed in more detail
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See IRS Publication 15, Circular E,
Employer's Tax Guide for specific information on employment tax
rates. https://www.irs.gov/pub/irs-pdf/p15_18.pdf. See More than 44
percent of Americans pay no federal income tax (Sep. 16, 2018)
available at: https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16. (last visited Sep. 16, 2018)
\123\ Calculation: (6.2 percent Social Security + 1.45 percent
Medicare) x 2 employee and employer losses = 15.3 percent total
estimated tax loss to government.
---------------------------------------------------------------------------

To estimate the range of employment tax losses, we take the
estimated lost earnings for the range of initial and renewal projected
filers at the prevailing and average wage rates from Table 18, columns
G and H, and multiply each year by 15.3 percent. These calculations are
shown in Table 21.
BILLING CODE 9111-97-P

[[Page 74243]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.095

[[Page 74244]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.096

Lost earnings, which DHS estimates could range between
$6,038,201,268 and $14,716,520,096 \124\ over the 10-year period from
FY 2020 to FY 2029, would result in corresponding employment tax losses
ranging between $923,844,794 and $2,251,612,274.\125\ Annualized at 7
percent, employment tax losses would range from approximately
$93,947,687 to $228,789,887 (Table 22). Again, depending on the
circumstances of the employee, there could be additional federal income
tax losses not estimated here. There may also be state and local income
tax losses that would vary according to the jurisdiction, but which DHS
is unable to quantify. It is noted that the potential decrease in tax
transfers only applies to the compensation impacts, not to labor
turnover costs, costs associated with the forms' burdens, or
implementation and usage of E-Verify.
---------------------------------------------------------------------------

\124\ Calculations (data from Table 18): $1,388,614,986 (10-year
total initial upper bound costs) + $4,649,586,282 (10-year total
renewal upper bound costs) = $6,038,201,268 (minimum 10-year total
lower bound costs); $3,384,879,722 (10-year total initial upper
bound costs) + $11,331,540,374 (10-year total renewal upper bound
costs) = $14,716,420,096 (maximum 10-year total upper bound costs).
\125\ Calculations: $212,458,093 (10-year total initial lower
bound costs) + $711,386,701 (10-year total renewal lower bound
costs) = $923,844,794 (minimum 10-year total lower bound costs);
$517,886,597 (10-year total initial upper bound costs) +
$1,733,725,677 (10-year total renewal upper bound costs) =
$2,251,612,274 (maximum 10-year total upper bound costs).

---------------------------------------------------------------------------

[[Page 74245]]

II. Total Costs of the Rule
In the previous sections we presented monetized estimates of the
impacts of the proposed rule germane to lost labor earnings, biometrics
submission, increased time burdens for completing forms, and labor
turnover costs for renewals. We estimated the per employer cost
associated with enrolling in and participating in the E-Verify program,
but not the total costs for businesses. In the development of costs
associated with lost labor earnings, our inability to refine the
population that could be impacted drove reliance on a lower and upper
bound.
The total impacts are aggregated by summing the total initial and
renewal impacts from Tables 18 through 21 in terms of the maximum and
minimum estimates. Therefore, Table 22 shows the range of estimated
monetized costs of the proposed rule, where Table 22(A) presents the
maximum estimates, and Table 22(B) presents the minimum estimates. For
each sub-table the ten-year totals are provided in undiscounted 10-year
total values, as well as the present value costs and annualized costs
discounted at 7 percent and 3 percent.

[[Page 74246]]

[GRAPHIC] [TIFF OMITTED] TP19NO20.097

BILLING CODE 9111-97-C

[[Page 74247]]

As table 22 shows, the projected 10-year monetized undiscounted
costs of the proposed rule for the period fiscal year 2020 to 2029
could be as high as about $14.72 billion with a minimum cost estimate
of $6.04 billion under the assumptions relied on.\126\ The majority of
the costs of this rule would result from lost labor earnings, if
companies are unable to find reasonable labor substitutes for the
position the aliens temporarily released on orders of supervision would
have filled. DHS notes there are unquantified costs not reflected in
the estimates above.
---------------------------------------------------------------------------

\126\ Calculations: $6,038,201,268 (lost labor earnings costs) +
$824,075 (biometrics costs) + $116,165 (time burden to complete
forms costs) = $6,039,141,507 minimum undiscounted 10-year total;
$14,716,420,096 (lost labor earnings costs) + $5,476,238 (biometrics
costs) + $1,044,829 (time burden to complete forms costs) =
$14,722,941,163 maximum undiscounted 10-year total.
---------------------------------------------------------------------------

Benefits
The benefits potentially realized by the proposed rule are both
qualitative and quantitative. DHS has provided estimates of monetized
benefits, where possible. DHS estimates that U.S. workers could have a
better chance of obtaining jobs that some (c)(18) alien workers
currently hold, as the proposed rule would reduce employment
authorization eligibility for the (c)(18) alien worker population.
In addition, the restriction on the ability to obtain work
authorization may increase incentives for aliens with final orders of
removal to depart the United States, which could decrease the amount of
time aliens are in this status and could save government resources
expended while aliens are temporarily released on orders of supervision
and pending repatriation. ICE oversees the monitoring and tracking of
aliens on orders of supervision as well as effectuates their removal
from the United States.\127\ Managing aliens temporarily released on
orders of supervision consumes DHS resources. Specifically, ICE must
devote resources to track and monitor the status of these aliens. This
includes conducting regular check-ins to ensure compliance with
conditions of release. These cases absorb scarce enforcement resources
that could be diverted to, among other things, identifying and
detaining criminal aliens. If fewer aliens with final orders of removal
on orders of supervision remain in the United States for an extended
period of time because this rule increases the incentives for them to
depart, then ICE is likely to spend fewer resources on monitoring and
tracking aliens on orders of supervision. Monetizing this benefit is
not possible at this time. Although the federal government makes
efforts to remove these aliens from the United States on an ongoing
basis regardless of employment authorization, there is no way to know
the timing of when aliens would be removed, if an alien would be
motivated to self-deport or, ultimately, who would execute the removal.
---------------------------------------------------------------------------

\127\ See Immigration Enforcement, Removal https://www.ice.gov/removal and Enforcement and Removal Operations, ERO Overview https://www.ice.gov/ero.
---------------------------------------------------------------------------

The proposal to revise the (a)(10) employment authorization
category could provide aliens who are granted CAT deferral of removal
with monetary benefits that can be quantified. Currently, this
population is regulated to apply for an EAD under the (c)(18) category.
In practice, DHS acknowledges that some aliens who are granted CAT
deferral of removal have applied under the (a)(10) Form I-765 category
and adjudication of these applications has been inconsistent. This
proposed revision would thus reduce confusion for aliens who are
granted CAT deferral of removal applying for an EAD and would lead to
consistent Form I-765 adjudication for this population.
For those who currently apply under the (c)(18) category, Form I-
765 must be accompanied by the filing fee and a copy of the DOJ
Executive Office for Immigration Review (EOIR) immigration judge's
order of removal. As stated in the Form I-765 instructions, three
additional factors may also be considered under the (c)(18) category,
including the existence of a dependent spouse and/or children in the
United States who rely on the alien for support; existence of economic
necessity to be employed; and the anticipated length of time before the
alien can be removed from the United States. If supporting evidence is
requested, DHS recognizes that there would be associated opportunity
costs of time for those aliens.
Aliens under the (a)(10) category are not required to apply to DHS
to obtain employment authorization before they can begin work. However,
(a)(10) aliens are required to apply (i.e., submit Form I-765) in order
to receive a physical EAD card if they want a document evidencing their
employment authorization pursuant to their grant of withholding or
deferral. Under the (a)(10) category, aliens file Form I-765 with a
copy of the EOIR immigration judge's signed order granting withholding
of removal. There are no additional factors for consideration. DHS is
not able to determine the number of aliens who are granted CAT deferral
of removal who apply under the (c)(18) category, submit evidence for
the additional factors, or who may opt to not apply for a physical EAD
card. Therefore, since DHS cannot separate out the number of applicants
who may benefit from this proposed provision, we consider a ``best-
case'' scenario. In the best-case scenario, none of the 147 (the 5-year
average number of cases, Table 16) aliens who are granted CAT deferral
of removal would apply for a physical EAD card after the effective date
of this rule since they would not need to obtain an EAD in order to
begin work. Under this scenario, benefits would accrue from not paying
filing fees and not spending time filing Form I-765. The filing fee for
aliens applying for employment authorization is $550.\128\ DHS
estimates this population could save a maximum $80,850 in filing fees
in the first year of the rule becoming effective.\129\ The other
benefit would be accrued in the form of opportunity costs since these
aliens would not spend time preparing and submitting Form I-765 and any
other evidence that would have been required under the (c)(18)
considerations. DHS is able to quantify the savings that would result
from not submitting Form I-765, which has an estimated time burden of 4
hours and 30 minutes.\130\ Using the lower and upper bound wage rates,
the opportunity cost of time savings would range from about $77.54 to
$168.98 per alien in the first year.\131\ For the 147 aliens who are
granted CAT deferral of removal, the opportunity cost of time savings
would range from $11,398 to $24,840 under this scenario.\132\ Per
alien, benefits for this population would range from approximately
$627.54 to $718.98 per alien, with a total benefit ranging from $92,248
to $105,690 annually.\133\ Additional savings could

[[Page 74248]]

also be accrued in the form of opportunity costs if applicants would
have spent time submitting evidence under any of the (c)(18)
considerations.
---------------------------------------------------------------------------

\128\ USCIS was previously authorized to collect a $410 Form I-
765 filing fee. However, the recently promulgated fee rule updated
the fee for Form I-765 to $550. The final fee rule is expected to
take effect on October 3, 2020. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration
Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020).
\129\ $550 (filing fee to apply for an initial EAD under the
(c)(18) category) x 147 (average number of cases granted CAT
deferral of removal) = $80,850.
\130\ See Instructions for Form I-765 (05/31/2020) at https://www.uscis.gov/i-765.
\131\ Calculations: 4.5 hours (time burden for Form I-765) x
$17.23 (one hour of work at prevailing wage) = $77.54; 4.5 hours
(time burden for Form I-765) x $37.55 (one hour of work at average
wage for all occupations) = $168.98.
\132\ Calculations: $77.54 x 147 (the average number of cases
granted CAT deferral of removal) = $11,398; $168.98 x 147 (the
average number of cases granted CAT deferral of removal) = $24,840.
\133\ Calculation: $77.54 (lower bound opportunity cost of time)
+ $550 (filing fee) = $627.54; $168.98 (upper bound opportunity cost
of time) + $550 (filing fee) = $718.98; $627.54 x 147 = $92,248
(lower bound total benefit); $718.98 x 147 = $105,690 (upper bound
total benefit).
---------------------------------------------------------------------------

The scenario presented here is an extreme to best estimate the
maximum savings of this proposed provision. It is likely that some
aliens who are granted CAT deferral of removal would continue to submit
Form I-765 and pay the $550 filing fee in order to obtain a physical
EAD card. Therefore, the overall benefit of this proposed provision is
presented using a range from $0 to $105,690 annually.
DHS welcomes any data or public comments on the benefits of
removing the eligibility of employment authorizations to certain
(c)(18) workers. DHS is particularly interested in public comments
about the benefits to U.S. workers of removing the eligibility of
employment authorization for (c)(18) workers. DHS is also interested in
receiving comments on the increased employment opportunities for U.S.
workers due to this rule. DHS welcomes any overall public feedback or
data that could assist DHS in quantifying the benefits of the proposed
rule.
Labor Market Overview
As discussed in the population section of this analysis, USCIS
anticipates approving somewhere between 17,077 and 22,090 Form I-765
applications annually from aliens with final orders of removal in the
absence of this proposed rule.\134\ The U.S. labor force consists of a
total of 160,143,000 workers, according to recent data (September
2020).\135\ Therefore, the maximum population affected by this proposed
rule (about 22,090) represents 0.01 percent of the U.S. labor force,
suggesting that the number of potential workers no longer eligible for
an EAD make up a very small percentage of the U.S. labor market.\136\
---------------------------------------------------------------------------

\134\ Calculations: 4,241 (projected initial approvals FY 2029)
+ 12,836 (projected renewal approvals FY 2029) = 17,077 minimum
projected annual approvals; 4,728 (projected initial approvals FY
2020) + 17,362 (projected renewal approvals FY 2020) = 22,090
maximum projected annual approvals.
\135\ The BLS labor force data are found in Table A-1.
Employment status of the civilian population by sex and age,
seasonally adjusted, from the Current Population Survey October 2020
News Release: https://www.bls.gov/news.release/archives/empsit_10022020.pdf. (last visited October 8, 2020).
\136\ Calculation: (22,090 maximum projected annual (c)(18)
alien worker approvals/160,143,000 workers) *100 = 0.01 percent
(rounded).
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. The term ``small entities'' comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, or governmental
jurisdictions with populations of less than 50,000.\137\
---------------------------------------------------------------------------

\137\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

This proposed rule would eliminate eligibility for employment
authorization for aliens who have final orders of removal and are
temporarily released on orders of supervision except in cases where the
alien meets the exception under this proposed rule (i.e. removal is
impracticable because all countries from whom DHS requested travel
documents have affirmatively declined to issue such documents). DHS has
estimated that the rule would cover an upper bound population of about
22,090 aliens. As previously explained, the provision being proposed
may result in forgone labor earnings for aliens temporarily released on
order of supervision. This rule directly regulates and impacts aliens
temporarily released on orders of supervision and individuals are not
considered a small entity under the Regulatory Flexibility Act. Some
entities (including employers) could be indirectly impacted by labor
turnover costs or the costs of implementing and utilizing E-Verify by
this proposed rule because they employ an affected alien. DHS has
prepared an initial regulatory flexibility analysis (IRFA) to accompany
this proposed rule.
i. A Description of the Reasons Why the Action by the Agency is Being
Considered
DHS has determined that the current employment authorization
regulations governing discretionary employment authorization do not
adequately reflect DHS's enforcement mission and priorities. As
discussed more fully in the preamble, DHS's enforcement goals are not
consistent with allowing aliens to work when they have an order of
removal from the United States.
DHS is proposing through this rulemaking to align its discretionary
authority to grant employment authorization with its immigration
enforcement mission and priorities. Enforcement is essential to the
integrity of the immigration system.
ii. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
DHS's authority to detain and release aliens ordered removed from
custody on orders of supervision and to grant employment authorization
is found in several statutory provisions. Section 102 of the Homeland
Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C.
112 and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary
with the administration and enforcement of the immigration and
naturalization laws of the United States.\138\ In addition to
establishing the Secretary's general authority to administer and
enforce immigration laws, section 103 of the INA, 8 U.S.C. 1103,
enumerates various related authorities including the Secretary's
authority to establish regulations as are necessary for carrying out
his authority. Section 241 of the INA, 8 U.S.C. 1231, governs the
detention, release, and removal of aliens after they have received an
administratively final order of removal. Section 274A of the INA, 8
U.S.C. 1324a, governs employment of aliens who are authorized to be
employed by statute or in the discretion of the Secretary and the
requirements U.S. employers must follow to verify the identity and
employment authorization of their employees. The authority to establish
and operate E-Verify is found in sections 401-405 of IIRIRA, Public Law
104-208, 110 Stat. 3009-546. The Secretary proposes the changes in this
rule under these authorities.
---------------------------------------------------------------------------

\138\ Public Law 104-208, div. C, at secs. 401-405.
---------------------------------------------------------------------------

iii. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
This rule directly regulates and impacts aliens temporarily
released on orders of supervision and individuals are not considered a
small entity under the Regulatory Flexibility Act. Since some small
entities may be indirectly impacted by this proposed rule by employing
an affected alien, DHS has developed this IRFA to evaluate the
potential impact on small entities. Small entities could incur costs
due to the proposed rule if they employ EAD holders who are affected by
the new requirements of the proposed rule. However, DHS does not
currently require information on the employer or employment status of
the EAD holder and thus is unable to determine how many entities could
be impacted by the

[[Page 74249]]

proposed rule or whether the entities impacted would be considered
small entities. This is because these EADs are open market EADs,\139\
and therefore DHS does not currently collect information on the
employer or the employment status of the EAD holder. This proposed rule
may cause some existing EAD holders to be ineligible to renew their
EADs. In such cases, small entities may incur opportunity costs
associated with having to choose the next best alternative to
immediately filling a job an EAD holder would have filled in situations
where eligibility for the EAD is not met. If entities cannot find
reasonable substitutes for the labor the aliens temporarily released on
orders of supervision would have provided, removing EAD eligibility for
these aliens would result primarily in costs to those entities through
lost productivity and lost profits. DHS expects that this type of
turnover would be incurred in the first two years after the effective
date of this rule.\140\ Small entities, that do not currently
participate in E-Verify would incur costs to implement and use the
program in order to retain aliens temporarily released on orders of
supervision in order for the alien to be eligible for a renewal EAD
under this rule. DHS estimates the total first year cost for a new
entity to enroll in the E-Verify program and create a single E-Verify
case would be approximately $113.65. In subsequent years, DHS estimates
newly enrolled entities would incur a minimal annual cost of $53.71 to
maintain their account and create one new case for their (c)(18)
worker. DHS recognizes that the actual cost to newly-enrolled entities
of using E-Verify would be higher since case submissions would also
include all newly hired employees, not just (c)(18) workers. However,
since DHS cannot predict how many employees each entity would hire in
the future, DHS cannot estimate how many additional E-Verify cases an
entity may expect to create. Entities already enrolled in the E-Verify
program who choose to hire (c)(18) workers in subsequent years would
incur costs even in the absence of this proposed rule.
---------------------------------------------------------------------------

\139\ Open market EADs allow aliens to work in any occupation or
industry. The alien is not required to work for a specific employer
or in any specific industry or occupation, and the U.S. employer is
not required to test the labor market to ensure that there are no
U.S. workers available and that the hiring of the (c)(18) alien will
not adversely affect the wages and working conditions for similarly
situated U.S. workers.
\140\ We do not attribute turnover costs from ineligibility in
other years because we operate under the assumption that if an
initial EAD is approved, then the renewal would also be approved
under the proposed criteria of this rule. DHS recognizes that in
some cases, a renewal filing could be denied even in the wake of an
approved initial EAD in future years, but the number of instances
this would occur is unknown. Estimation of these cases would be
speculative at this time.
---------------------------------------------------------------------------

Small entities that are not participating in E-Verify face the
binary choice of participating in or not participating in the program.
If an entity who had hired a (c)(18) alien worker does not participate,
the entity faces the potential for labor turnover costs. If the entity
does participate, the entity incurs the cost of enrolling and
participating in the E-Verify program and implementing the program
requirements. On one hand, since the EADs last only a year, there might
be some disincentive not to participate in E-Verify. However, as
discussed in the population section, DHS cannot make reliable estimates
of the number of entities that would enroll and participate in E-
Verify, and as such, cannot estimate total costs germane to this
implementation.
If a small entity who employs (c)(18) alien workers who would
remain eligible under this rule is not enrolled in E-Verify and opts
not to enroll, the entity would incur labor related turnover costs.
Entities would incur labor turnover costs because these alien workers
would remain eligible for an initial EAD under this rule, but would not
be eligible for a renewal EAD since they would be unable to establish
that they are employed by an entity enrolled in E-Verify. As a result,
alien workers would no longer be able to work and presumably entities
would need to find a replacement worker. For aliens who would remain
eligible for an EAD under this rule, the duration of time to remove
aliens on orders of supervision from the U.S. would likely be longer
than average as DHS has determined that removal for these aliens is
impracticable because all countries from which DHS has requested travel
documents have affirmatively declined to issue such documents.
Therefore, entities who do not use or are enrolled in E-Verify would
incur turnover costs in cases where their (c)(18) alien workers would
remain eligible for an EAD under this rule.
Using annual earnings based on the effective minimum wage (lower
bound), DHS estimates labor turnover costs would be approximately
$7,168 per worker and using the annual earnings based on the average
wage (upper bound), DHS estimates labor turnover costs would be
approximately $15,621 per worker.\141\ Turnover costs would be higher
if a U.S. employer that does not use or enroll in E-Verify employ more
than one (c)(18) alien worker who would remain eligible under this
rule. DHS recognizes that turnover costs would occur in the year an EAD
expires and, depending on the effective date of this rule should it
become finalized, employers who incur turnover costs may incur them in
up to two consecutive fiscal years.
---------------------------------------------------------------------------

\141\ Calculations: $35,838 x 20% = $7,168; $78,106 x 20% =
$15,621.
---------------------------------------------------------------------------

DHS is unable to predict how many entities would actually
participate in E-Verify in order to retain their (c)(18) alien workers
or the total number of employment authorizations they would confirm
through E-Verify should they choose to participate. DHS assumes that
entities would make a cost-benefit decision between incurring labor
turnover costs and incurring the current and future costs to enroll and
participate in E-Verify. DHS recognizes that an entity that enrolls and
participates in E-Verify would confirm employment authorization for all
new hires, not only their (c)(18) alien workers.
DHS has no way to predict how many small entities would adopt the
E-Verify system and how many workers they would vet. Since this rule
proposes to eliminate eligibility for employment authorization for
aliens temporarily released on orders of supervision, the impact on the
renewal population would depend on which aliens remain eligible and if
the alien's employer already participates in E-Verify or would be
willing to enroll and participate in E-Verify if the employer is not
enrolled. DHS cannot rule out that some employers would incur labor
turnover costs as a result of choosing to not enroll and participate in
E-Verify. Because of the uncertainty regarding eligibility, DHS is
unable to estimate a range for the renewal population that would be
impacted by this provision and attempting to do so would be completely
speculative. However, DHS acknowledges there could be renewal
applicants who would be impacted by this provision, which could, in
turn, affect employers, some of which could be small entities. DHS
seeks comments from the public on the impacts to small entities from
enrolling and participating in the E-Verify program. DHS also seeks
public comment on the number of small businesses that may be affected
as well as compliance costs to those small businesses as a result of
this proposed rule.

[[Page 74250]]

iv. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report Record
This rule would not directly impose any reporting, recordkeeping,
or other compliance requirements on small entities.
v. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
DHS is unaware of any relevant federal rule that may duplicate,
overlap, or conflict with the proposed rule.
vi. Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
This rule directly regulates and impacts aliens temporarily
released on orders of supervision and individuals are not considered a
small entity under the Regulatory Flexibility Act. Accordingly, DHS is
not aware of any alternatives to the proposed rule that accomplish the
stated objectives and that would minimize the economic impact of the
proposed rule on small entities as this rule already imposes no direct
costs on small entities. DHS requests comments and seeks alternatives
from the public that will accomplish the same objectives.

C. Congressional Review Act

This proposed rule is a major rule as defined by 5 U.S.C. 804, also
known as the Congressional Review Act (CRA) as enacted in section 251
of the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule,
if enacted as a final rule, would be effective at least 60 days after
the date on which Congress receives a report submitted by DHS under the
CRA, or 60 days after the final rule's publication, whichever is later.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The value
equivalent of $100 million in 1995, adjusted for inflation to 2019
levels by the Consumer Price Index for All Urban Consumers (CPI-U), is
$168 million.\142\ While this rule may result in the expenditure of
more than $100 million annually, the rulemaking is not a ``Federal
mandate'' as defined for UMRA purposes. Therefore, no actions were
deemed necessary under the provisions of the UMRA.
---------------------------------------------------------------------------

\142\ U.S. Bureau of Labor Statistics, Historical Consumer Price
Index for All Urban Consumers (CPI-U): U.S. City Average, All Items,
available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202001.pdf (last visited Feb. 19, 2020).
Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2019-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 = (103.274/
152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent (rounded).
Calculation of inflation-adjusted value: $100 million in 1995
dollars * 1.68 = $168 million in 2019 dollars.
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States,
on the relationship between the federal government and the States, or
on the distribution of power and responsibilities among the various
levels of government. DHS does not expect that this proposed rule would
impose substantial direct compliance costs on State and local
governments or preempt state law. Therefore, in accordance with section
6 of E.O. 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

F. 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.

G. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments

This proposed rule does not have tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the federal government and
Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes.

H. Family Assessment

DHS has reviewed this proposed rule in line with the requirements
of section 654 of the Treasury General Appropriations Act, 1999, Public
Law 105-277. DHS has systematically reviewed the criteria specified in
section 654(c)(1). DHS has determined that the proposed rule may
adversely cause personal and family-related hardships, including
causing disruptions to the alien, U.S. citizen, or LPR spouses and/or
children dependent on the income currently earned by the affected alien
and may decrease disposable income and increase the poverty of certain
family members. However, DHS notes that an alien with a final order of
removal will eventually be removed from the country and such families
should ultimately expect to experience such hardships. Thus, this
proposed rule could result in families experiencing such hardships
earlier in comparison to the state of affairs in the absence of the
proposed rule. DHS has also determined that the proposed rule neither
strengthens or erodes the authority and rights of parents in the
education, nurture and supervision of their children; nor affects the
ability for a family to perform its functions, or substitutes
governmental activity or function; this is not an action that can be
carried out by State or local government or by the family, nor does the
action establish an implicit or explicit policy concerning the
relationship between the behavior and personal responsibility of youth
and the norms of society. For the reasons stated elsewhere in this
preamble, however, DHS has determined that the benefits of the action
justify the financial impact on the family. As described in the
Purpose, Background, and Discussion sections of this rule, DHS has
compelling legal and policy reasons for the proposed regulatory action,
including the enforcement of the general prohibition against providing
alien's ordered removed with employment authorization and encouraging
those aliens with final orders of removal to depart the United States.

I. National Environmental Policy Act

DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual
023-01-001-01 Rev. 01 establish the policies and procedures DHS and its
components use to comply with the National Environmental Policy Act
(NEPA) and the Council on Environmental Quality (CEQ)

[[Page 74251]]

regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The
CEQ regulations allow Federal agencies to establish, with CEQ review
and concurrence, categories of actions (``categorical exclusions''),
which experience has shown do not individually or cumulatively have a
significant effect on the human environment and, therefore, do not
require an Environmental Assessment or Environmental Impact Statement.
40 CFR 1507.3(b)(2)(ii), 1508.4. For an action to be categorically
excluded, the Instruction Manual requires the action to satisfy each of
the following three conditions: (1) The entire action clearly fits
within one or more of the categorical exclusions; (2) the action is not
a piece of a larger action; and (3) no extraordinary circumstances
exist that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c).
This proposed rule would amend regulatory criteria for determining
eligibility for employment authorization for aliens temporarily
released from custody on an order of supervision by amending two
existing regulations. First, it would amend 8 CFR 274a.12 to limit
employment authorization eligibility to aliens whose removal DHS has
determined is impracticable because all countries from whom DHS has
requested travel documents have affirmatively declined to issue such
documents and who establish economic necessity. Second, this proposed
rule would amend the application process in 8 CFR 274a.13 for aliens
seeking initial employment authorization by making certain changes to
the supporting documentation submitted with the application. The
proposed amendments clearly fit within categorical exclusion A3(a)
``Promulgation of rules of a strictly administrative or procedural
nature'' and A3(d) ``Promulgation of rules . . . that interpret or
amend an existing regulation without changing its environmental
effect.'' Instruction Manual, Appendix A, Table 1. Furthermore, the
proposed amendments are not part of a larger action and do not present
extraordinary circumstances creating the potential for significant
environmental impacts. Therefore, the proposed amendments are
categorically excluded from further NEPA review.

J. Paperwork Reduction Act

DHS is submitting the information collection requirements in this
rule to OMB for review and approval in accordance with requirements of
the PRA of 1995, 44 U.S.C. 3501-3512. Table 23 shows a summary of the
forms that are part of this rulemaking.

Table 23
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicability to
Form Form name New or updated form General purpose of General categories employment
form filing authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-765.............................. Application for Update--revises and Applicants use this Aliens USCIS will require
Employment adds instructions and form to request temporarily released aliens seeking
Authorization. questions for aliens employment on orders of employment
seeking employment authorization from supervision. authorization based
authorization who are USCIS. Aliens on an order of
subject to a final granted deferral of supervision or DCAT
order of removal and removal under the to file an
have been temporarily regulations application to
released from custody implementing the CAT. receive an EAD.
on an order of
supervision and for
aliens who are
recipients of
deferral of removal
under the regulations
implementing the CAT.
I-765WS............................ Form I-765 Worksheet.. Update--updates Applicants for Aliens USCIS will require
instructions to employment temporarily released aliens seeking
include aliens authorization use on orders of employment
temporarily released this form to provide supervision. authorization based
on orders of financial on an order of
supervision in the information supervision to
list of aliens who demonstrating an submit Form I-765WS
must complete the economic need for to establish
Form I-765WS to show employment economic need for an
economic necessity authorization and an EAD.
for employment explanation of the
authorization. circumstances
resulting in the
need for an EAD.
--------------------------------------------------------------------------------------------------------------------------------------------------------

USCIS Form I-765 and I-765WS
DHS invites comment on the impact to the proposed collection of
information. In accordance with the PRA, the information collection
notice is published in the Federal Register to obtain comments
regarding the proposed edits to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0040 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and I. Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
1. Evaluate whether the collection of the information is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Employment
Authorization.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Forms I-765; I-765WS; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. USCIS
will require an individual seeking employment authorization who has a
final order of

[[Page 74252]]

removal and was temporarily released on an order of supervision to file
the Form I-765. USCIS will use the data collected on this form to
determine if an individual temporarily released on an order of
supervision and seeking employment authorization is eligible based on
DHS's determination that his or her removal is impracticable because
all countries from whom DHS has requested travel documents have
affirmatively declined to issue such documents. Form I-765WS is used to
determine if the individual seeking employment authorization has an
economic need to work.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-765
is 2,286,000 and the estimated hour burden per response is 5 hours; the
estimated total number of respondents for the information collection
Form I-765WS is 307,697 and the estimated hour burden per response is
.50 hours; the estimated total number of respondents for the
information collection biometrics is 308,232 and the estimated hour
burden per response is 1.17 hours: the estimated total number of
respondents for the information collection passport-style photographs
is 2,280,303 and the estimated hour burden per response is .50 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 13,084,631hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this information collection is $400,838,850.

K. Signature

The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 106

Immigration, user fees.

8 CFR Part 241

Administrative practice and procedure, Aliens, Employment,
Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.

Regulatory Amendments

Accordingly, DHS proposes to amend parts 106, 241 and 274a of
chapter I, subchapter B, of title 8 of the Code of Federal Regulations
as follows:

PART 106--USCIS FEE SCHEDULE

0
1. The authority for Part 106 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub.
L. 107-609; 48 U.S.C. 1806; Pub. L. 115-218.

0
2. Amend Sec. 106.2 by adding paragraph (a)(32)(i)(C) to read as
follows:

Sec. 106.2 Fees

(a) * * *
(32) * * *
(i) * * *
(C) An alien subject to a final order of removal and temporarily
released on an order of supervision who is applying for initial or
renewal of employment authorization under 8 CFR 274a.12(c)(18).

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

0
3. The authority citation for part 241 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4103(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101, et. seq.); 8 CFR part 2.

0
4. Amend Sec. 241.4 by revising paragraph (j)(3) to read as follows:

Sec. 241.4 Continued detention of inadmissible, criminal, and other
aliens beyond the removal period.

* * * * *
(j) * * *
(3) Employment authorization. An alien who is subject to a final
order of deportation or removal and whom U.S. Immigration and Customs
Enforcement has temporarily released on an order of supervision
pursuant to section 241(a)(3) of the Act may apply to USCIS for
employment authorization pursuant to the procedures prescribed under 8
CFR 274a.12(c)(18) and 274a.13. Any grant of employment authorization
by USCIS is completely discretionary and the burden is on the alien to
establish that he or she warrants a favorable exercise of discretion to
receive employment authorization under this part. USCIS will only grant
employment authorization if USCIS determines that the alien meets the
criteria for employment authorization under 8 CFR 274a.12(c)(18) and
warrants a favorable exercise of discretion. The alien must request
employment authorization on the form and in the manner prescribed by
USCIS and according to the form instructions, and must submit
biometrics, with any required fee.
* * * * *
0
5. Amend Sec. 241.5 by revising paragraphs (a) and (c) to read as
follows:

Sec. 241.5 Conditions of release after removal period.

(a) Order of Supervision. Any alien U.S. Immigration and Customs
Enforcement releases pursuant to 8 CFR 241.4 or 241.13(h), must be
temporarily released on an order of supervision and must be issued a
completed Form I-220B, Order of Supervision, specifying the conditions
of release and the consequences for failure to comply with the
conditions of release, including DHS authority to take the alien back
into custody and the potential for criminal charges and fines under
section 243 of the Act if the alien fails to comply with the conditions
of release. The Secretary, Director of ICE, or designated delegate must
have the authority to issue an order of supervision under this section.
The order of supervision must specify the conditions of release
including, but not limited to, the following:
* * * * *
(c) Employment authorization. An alien who is subject to a final
order of deportation or removal and whom U.S. Immigration and Customs
Enforcement has temporarily released on an order of supervision
pursuant to section 241(a)(3) of the Act may apply to USCIS for
employment authorization pursuant to 8 CFR 274a.12(c)(18) and 274a.13.
USCIS will only grant employment authorization under this paragraph if
USCIS determines, in the sole and unreviewable discretion of USCIS,
that the alien meets the criteria to apply for employment authorization
under 8 CFR 274a.12(c)(18) and warrants a favorable exercise of
discretion.

Sec. 241.13 [Amended]

0
6. Amend Sec. 241.13(h)(3) by
0
a. Removing the words ``The Service'' and adding in its place
``USCIS''; and
0
b. Removing the reference to paragraph ``Sec. 241.5(c)'' and adding in
its place ``8 CFR 241.5, 274a.12(c)(18), and 274a.13''.

[[Page 74253]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
7. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.

0
8. Amend Sec. 274a.12 by revising paragraphs (a)(10) and (c)(18) to
read as follows:

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

(a) * * *
(10) An alien granted withholding of removal under section
241(b)(3) of the Act or pursuant to 8 CFR 208.16(c), 8 CFR 1208.16(c),
and an alien granted CAT deferral of removal pursuant to 8 CFR 208.17,
1208.17, for the period of time in that status, as evidenced by an
employment authorization document issued by USCIS.
* * * * *
(c) * * *
(18)(i) USCIS, in its sole and unreviewable discretion, may grant
employment authorization to an alien who is subject to a final order of
deportation or removal and temporarily released from custody on an
order of supervision, pursuant to section 241(a)(3) of the Act, who
establishes economic necessity for employment, and for whom DHS has
determined that the alien's removal is impracticable because all
countries from which DHS has requested travel documents have
affirmatively declined to issue such documents.
(ii) USCIS may grant employment authorization under 8 CFR
274a.12(c)(18) for a period that USCIS determines is appropriate at its
discretion, not to exceed one year. Factors that USCIS will consider in
determining whether an applicant with a final order of removal and
temporarily released on an order of supervision warrants a favorable
exercise of discretion include but are not limited to:
(A) Whether the alien is the primary provider of economic support
for a dependent U.S. citizen or lawful permanent resident spouse,
child(ren), and/or parent;
(B) Whether the alien is complying with the order of supervision;
(C) The anticipated length of time before the alien can be removed
from the United States; and
(D) The alien's criminal history, including but not limited to
whether the alien has been arrested for or convicted of any crimes
after having been ordered removed from the United States and released
from custody on an order of supervision;
(iii) For renewal applications only, the applicant must also show
that he or she is employed by a U.S. employer who is a participant in
good standing in E-Verify.
* * * * *
0
9. Amend Sec. 274a.13 by adding paragraph (a)(3) and revising
paragraph (b) to read as follows:

Sec. 274a.13 Application for employment authorization.

(a) * * *
(3) Aliens with final orders of removal or deportation who have
been temporarily released from detention on an order of supervision and
whose removal DHS has determined is impracticable because all countries
from which DHS has requested travel documents have affirmatively
declined to issue such documents, and are applying for initial
employment authorization or renewal of employment authorization based
on 8 CFR 274a.12(c)(18) must file the appropriate form designated by
USCIS, with the prescribed fee, and in accordance with the form
instructions.
(i) Evidence for initial applications. Aliens who are applying for
initial employment authorization under 8 CFR 274a.12(c)(18) must submit
the following supporting documentation:
(A) A decision by an immigration judge or the Board of Immigration
Appeals or an administrative removal order issued by DHS demonstrating
that the alien is subject to a final order of removal or deportation;
(B) A completed Form I-765WS, Form I-765 Worksheet or successor
form designated by USCIS and in accordance with the form instructions
to show economic necessity; and
(C) A copy of the complete order of supervision issued by U.S.
Immigration and Customs Enforcement including a copy of the complete
Personal Report Record which reflects that the alien has been in
continuous compliance with the order of supervision, from the date the
alien was temporarily released on an order of supervision through the
time of adjudication of the application for employment authorization.
(ii) Evidence for Renewal Applications for Employment
Authorization. In addition to the evidence required under paragraph
(a)(3)(i) of this section, aliens seeking renewal of employment
authorization based on 8 CFR 274a.12(c)(18) must provide their U.S.
employer's E-Verify Company Identification Number (or client company
identification number if the U.S. employer uses an agent) and the
employer's name as listed in E-Verify. An E-Verify employer is a
participant in good standing if the employer has enrolled in E-Verify
with respect to all hiring sites in the United States that employ an
alien temporarily released from custody on an order of supervision who
has received employment authorization under this rule, when the alien
files their application for employment authorization; is in compliance
with all requirements of the E-Verify program, including but not
limited to verifying the employment eligibility of newly hired
employees at those hiring sites; and continues to be a participant in
good standing in E-Verify at any time during which the employer employs
an alien temporarily released on an order of supervision who has
received employment authorization under this rule.
(b) Approval of application. If USCIS approves an application for
employment authorization, USCIS will notify the alien. USCIS will issue
an Employment Authorization Document (EAD) valid for a specific period
and subject to any terms and conditions noted. For aliens granted
employment authorization based on DHS's determination that the alien's
removal is impracticable because all countries from which DHS has
requested travel documents have affirmatively declined to issue a
travel document, USCIS may limit the validity period, in its
discretion, not to exceed one year.
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel,U.S.
Department of Homeland Security.
[FR Doc. 2020-25473 Filed 11-17-20; 11:15 am]
BILLING CODE 9111-97-P