Employment Authorization Documents
AGENCY: Bureau of Citizenship and Immigration Services, DHS.
ACTION: Interim rule with request for comments.
SUMMARY: This interim rule amends Bureau of Citizenship and Immigration
Services (BCIS) regulations governing issuance of Employment Authorization Documents
(EADs). Through this rule, BCIS will now establish EAD validity periods based
on certain criteria, including: The applicant's immigration status; general processing
time for the underlying application or petition; required background checks and
response times for background checks by other agencies, as necessary; other security
considerations and factors as deemed appropriate by BCIS. BCIS will have discretion
to modify EAD validity periods both for initial, renewal, and replacement cards.
BCIS also will be able to establish EAD validity periods for classes of aliens
and for individuals within those classes whose cases warrant a lesser validity
period. The rule also removes current regulatory language limiting EAD validity
periods to one-year increments for certain classes of aliens who are required
to apply for employment authorization. Finally, the rule amends BCIS regulations
to reflect that BCIS will issue EADs to aliens granted asylum by the Department
of Justice, Executive Office of Immigration Review (EOIR), with validity periods
of up to five years, unless otherwise appropriate.
DATES: Effective date: This rule is effective July 30, 2004.
Comment date: Written comments must be submitted on or before September 28,
ADDRESSES: Please submit written comments to the Director,
Regulations and Forms Services Division, Department of Homeland Security, 425
I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please
reference BCIS No. 2152-01 in your correspondence. You may also submit comments
electronically at: firstname.lastname@example.org. When submitting comments electronically,
you must include CIS No. 2152-01 in the subject box. Comments are available
for public inspection at the above address by calling (202) 514-3291 to arrange
for an appointment.
FOR FURTHER INFORMATION CONTACT: Jonathan Mills, Residence
and Status Services, Office of Program and Regulations Development, Bureau of
Citizenship and Immigration Services, Department of Homeland Security, 425 ``I''
Street, NW., ULLICO Building, Third Floor, Washington, DC 20536, telephone (202)
Who Is Affected by This Rule?
This interim rule affects aliens who are required to apply for
employment authorization or, if employment authorized incident to
immigration status, to apply for evidence of employment authorization.
This interim rule also affects aliens who have been granted asylum by
EOIR and wish to obtain evidence of employment authorization.
What Are the Current Requirements for EAD Issuance?
Under 8 CFR 274a.12(a), certain aliens are authorized employment
incident to their immigration status (e.g., lawful permanent residents,
lawful temporary residents, parolees, aliens in Temporary Protected
Status, etc.). Such aliens are eligible to work in the United States
regardless of whether they receive an EAD. However, these aliens must
apply to BCIS to receive an EAD evidencing their employment
authorization. Under 8 CFR 274a.12(c), certain aliens are required to
apply for employment authorization before they may begin to work in the
U.S. (e.g., students seeking to perform optical practical training,
aliens with pending applications for adjustment of status, etc.). Such
aliens must apply to BCIS to receive an EAD authorizing them to work in
the United States, as well as evidencing the fact that they are
With limited exceptions, most classes of aliens who are employment
authorized under 8 CFR 274a.12(a) or 274a.12(c) are required to apply
for employment authorization using the Form I-765, Application for
Employment Authorization. If BCIS approves the Form I-765, it will
issue an EAD. For certain categories, the current regulations
specifically limit the EAD validity period to one-year increments. In
all other instances, and with limited exceptions, BCIS through policy
has set EAD validity periods at one year.
Why Is BCIS Removing the Current Regulatory and Policy Limitations
on EAD Validity Periods?
These regulatory and policy limitations often require an alien
whose underlying status is longer than one year, or whose underlying
application will remain pending with BCIS for longer than one year, to
apply for renewal of the EAD every year, creating a burden on the
applicant and an additional workload for BCIS. This rule gives BCIS the
discretion and flexibility to modify EAD validity periods for initial,
renewal, and replacement cards. BCIS also will establish EAD validity
periods for classes of aliens and will preserve the discretion to
establish validity periods of varying lengths for individuals within
those classes whose cases warrant a lesser validity period. BCIS will
issue field guidance to ensure that adjudicators use standard criteria
when exercising their discretion in establishing EAD validity periods.
For aliens who are employment authorized incident to status, BCIS
does not contemplate issuing employment authorization documents that
would expire only upon expiration of the alien's status. BCIS must
reserve the right to periodically expire such documents and, where
appropriate, issue new cards. This will allow BCIS to address any
security concerns and to ensure the integrity of the EADs process by
preventing fraud or misuse of such documents. BCIS intends to review
all classes of aliens who are employment authorized to determine a
general validity period for each class. For example, currently BCIS
issues permanent resident cards (Form I-551) with ten-year validity periods.
Similarly, BCIS intends to issue EADs to asylees with a validity period
of five years, unless otherwise appropriate. An expiration date on the
card reflects only that the card must be renewed, not that the bearer's
work authorization has expired.
What Does This Rule Implement?
This interim rule amends 8 CFR 274a.12(a) and (c) to eliminate
provisions in the regulations that provide a maximum validity period
for certain EADs. This rule also amends 8 CFR 274a.12(a)(5) to reflect
that BCIS will issue initial EADs to aliens granted asylum by the EOIR
with validity periods of up to five years, unless otherwise
Good Cause Exception
The Department of Homeland Security (DHS) has determined that good
cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to make this rule
effective July 30, 2004, for the following reasons: BCIS is modifying
the regulations at 8 CFR 274a.12(a)(5) and 274a.13(a) to facilitate
BCIS' immediate compliance with its statutory obligation under the
Enhanced Border Security and Visa Entry Reform Act (``Border Security
Act''), Pub. L. 107-173, 116 Stat. 543, 556-57; 8 U.S.C. 1158(c)(1)(B),
which became effective in May 2002. The Border Security Act requires
BCIS to provide asylees with initial evidence of employment
authorization. BCIS also is removing the regulatory limitations on
certain classes of one-year maximum validity periods to allow BCIS to
set more flexible EAD periods. In certain instances, BCIS will be able
to set validity periods for longer than one year, thereby benefiting
the aliens and reducing BCIS workload associated with yearly EAD
issuance. The delay in the implementation of this interim rule for
consideration of public comments prior to the effective date of the
rule will serve only to increase the current backlog of EAD
applications. Accordingly, DHS finds that it would be impracticable and
contrary to the public interest to delay the implementation of this
rule to allow the prior notice and comment period normally required
under 5 U.S.C. 553(b)(B) and(d)(3). DHS nevertheless invites written
comments on this interim rule and will consider any timely comments in
preparing a final rule.
Regulatory Flexibility Act
This rule will have a positive significant economic impact on a
substantial number of small businesses described in the Regulatory
Flexibility Act at 5 U.S.C. 605.
With this rule, DHS addresses security concerns and improves BCIS
efficiency by giving BCIS more flexibility in determining the
appropriate validity period for EADs. Due to security concerns, DHS
does not wish to have EADs issued with a validity period that is
significantly longer than the immigration status or processing time of
the application that the EAD is based upon. However, the validity
period needs to be long enough to significantly lessen the burden
created by the filing, adjudication, and issuance of EAD renewals.
Removing this burden will allow BCIS to better focus its policy and
resources upon improving the security and integrity of EADs and the
security, integrity, and efficiency of BCIS application processes.
In accordance with the President's long-term goal of a standard
BCIS application processing time of six months, this rule is forward-
looking, giving BCIS the flexibility to lessen the validity period of
affected EADs as BCIS processing times make progress toward and then
reach the President's goal.
Considering all of these factors, DHS believes that a flexible
validity period established by policy and taking into account security
considerations, application processing times, and other factors is more
appropriate than the inflexible validity periods contained in the
regulatory provisions in place prior to this interim rule.
This change will decrease costs for affected applicants in so far
as they will be required to pay the $175 filing fee for the I-765,
Application for Employment Authorization, in order to renew their EAD
less frequently or, in some situations, not at all.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by DHS to be an economically significant
regulatory action under Executive Order 12866, section 3(f), Regulatory
Planning and Review.
Obtaining and then presenting an EAD to an employer is how many
aliens verify their identity and employment authorization as required
by Form I-9, Employment Eligibility Verification. To obtain an EAD, an
applicant must submit a Form I-765, Application for Employment
Authorization Document, to the appropriate BCIS service center or
district office, along with a $175 fee or request for a fee waiver. The
fee is necessary to comply with Public Law 100-459, which requires BCIS
to prescribe and collect fees to recover the full cost of processing
immigration and naturalization applications, petitions, and associated
support benefits. An applicant who cannot afford to pay the fee may
submit a fee waiver request by following the instructions in 8 CFR
103.7(c). Therefore, the cost of filing each EAD renewal application is
This regulation removes regulatory provisions limiting the validity
period for some EADs. At present, BCIS receives more than 950,000 Form
I-765 applications for EAD renewal per year. The removal of the
regulatory provisions limiting EADs to no more than one year of
validity will have no effect by itself. However, there would be an
economically significant benefit stemming from the projected BCIS
policy change to a process where the validity period of these and
certain other EAD categories are established based on based upon
security concerns, the underlying application or status, and other
This policy change would reduce the number of Form I-765
applications for EAD renewal in the future. BCIS cannot yet estimate
the magnitude of this reduction because the policy change is still
under development. However, BCIS does plan to compensate for the lack
of a yearly EAD renewal application from affected aliens by ensuring
that certain security and background checks are generally completed
prior to issuance of EAD that is valid for more than one year.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or recordkeeping
requirements inherent in a final rule. This rule does not impose any
new reporting or recordkeeping requirements under the Paperwork
Reduction Act. However, as previously stated under Executive Order
12866, the DHS anticipates that as a result of this regulation there
will be a reduction in the number of Form I-765 submissions.
Accordingly, BCIS has submitted the Paperwork Reduction Change
Worksheet (OMB-83C) to the OMB reflecting the reduction in burden hours
for Form I-765 and the OMB has approved the changes.
List of Subjects in 8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, part 274a of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
1. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
2. Section 274a.12 is amended by:
a. Revising the introductory text of paragraph (a);
b. Revising paragraph (a)(5);
c. Removing the last sentence in paragraph (a)(15);
d. Revising paragraph (c);
e. Removing the second sentence in paragraph (c)(9);
f. Removing the last sentence in paragraph (c)(10);
g. Removing the last sentence in paragraph (c)(16);
h. Removing the last sentence in paragraph (c)(20);
i. Removing the last sentence in paragraph (c)(24);
The revisions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(a) Aliens authorized incident to status. Pursuant to the statutory
or regulatory reference cited, the following classes of aliens are
authorized to be employed in the United States without restrictions as
to location or type of employment as a condition of their admission or
subsequent change to one of the indicated classes. Any alien who is
within a class of aliens described in paragraphs (a)(3), (a)(4),
(a)(6)-(8), or (a)(10)-(16) of this section, and who seeks to be
employed in the United States, must apply to the Bureau of Citizenship
and Immigration Services (BCIS) for a document evidencing such
employment. BCIS may, in its discretion, determine the validity period
assigned to any document issued evidencing an alien's authorization to
work in the United States.
* * * * *
(5) An alien granted asylum under section 208 of the Act for the
period of time in that status, as evidenced by an employment
authorization document, issued by BCIS to the alien. An expiration date
on the employment authorization document issued by BCIS reflects only
that the document must be renewed, and not that the bearer's work
authorization has expired. Evidence of employment authorization shall
be granted in increments not exceeding 5 years for the period of time
the alien remains in that status.
* * * * *
(c) Aliens who must apply for employment authorization. An alien
within a class of aliens described in this section must apply for work
authorization. If authorized, such an alien may accept employment
subject to any restrictions stated in the regulations or cited on the
employment authorization document. BCIS, in its discretion, may
establish a specific validity period for an employment authorization
document, which may include any period when an administrative appeal or
judicial review of an application or petition is pending.
Dated: July 20, 2004. Tom Ridge, Secretary of Homeland Security. [FR Doc.
04-16938 Filed 7-29-04; 8:45 am]