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DEPARTMENT OF HOMELAND considered by DHS and USCIS. Note: Implementing CAT and Deferral of SECURITY Comments received after December 21, Removal Under Regulations 2020 on the proposed rulemaking rather Implementing CAT 8 CFR Parts 106, 241 and 274a than those specific to the collection of E. Employment Authorization F. Biometric Submission [CIS No. 2653–19; DHS Docket No. USCIS– information will not be considered by V. Discussion of the Proposed Rule 2019–0024] DHS and USCIS. A. Eligibility for Employment ADDRESSES: You may submit comments Authorization for Aliens on Orders of RIN 1615–AC40 on the entirety of this proposed Supervision rulemaking package, identified by DHS B. USCIS Evidentiary Requirements Employment Authorization for Certain C. Biometric Submission and Criminal Classes of Aliens With Final Orders of Docket No. USCIS–2019–0024, through the Federal eRulemaking Portal: http:// History Removal D. Aliens Granted Deferral of Removal www.regulations.gov. Follow the Under the Regulations Implementing AGENCY: Department of Homeland website instructions for submitting CAT Security. comments. E. Effective Date of the Final Rule ACTION: Notice of proposed rulemaking. Comments submitted in a manner F. Additional Amendments other than the one listed above, VI. Statutory and Regulatory Requirements SUMMARY: The U.S. Department of including emails or letters sent to DHS A. Executive Orders 12866 (Regulatory Homeland Security (DHS) is proposing or USCIS officials, will not be Planning and Review) and 13563 to eliminate employment authorization considered comments on the proposed (Improving Regulation and Regulatory eligibility for aliens who have final rule and may not receive a response Review) 1. Summary orders of removal but are temporarily from DHS. Please note that DHS and 2. Background and Purpose of the released from custody on an order of USCIS cannot accept any comments that Proposed Rule supervision with one narrow exception. are hand-delivered or couriered. In 3. Population DHS proposes to continue to allow addition, USCIS cannot accept 4. Costs and Benefits of the Proposed Rule employment authorization for aliens for comments contained on any form of B. Regulatory Flexibility Act (RFA) whom DHS has determined that their digital media storage devices, such as C. Congressional Review Act (CRA) removal is impracticable because all CDs/DVDs and USB drives. Due to D. Unfunded Mandates Reform Act of 1995 countries from whom travel documents COVID–19, USCIS is also not accepting (UMRA) E. Executive Order 13132 (Federalism) have been requested have affirmatively mailed comments at this time. If you F. Executive Order 12988 (Civil Justice declined to issue a travel document and cannot submit your comment by using Reform) who establish economic necessity. DHS http://www.regulations.gov, please G. Executive Order 13175 Consultation and intends for this rule to reduce the contact Samantha Deshommes, Chief, Coordination With Indian Tribal incentive for aliens to remain in the Regulatory Coordination Division, Governments United States after receiving a final Office of Policy and Strategy, U.S. H. Family Assessment order of removal and to strengthen Citizenship and Immigration Services, I. National Environmental Policy Act protections for U.S. workers. Department of Homeland Security, by (NEPA) J. Paperwork Reduction Act (PRA) DHS is also proposing to clarify that telephone at (240) 721–3000 for K. Signature aliens who have been granted a deferral alternate instructions. of removal based on the United States’ FOR FURTHER INFORMATION CONTACT: Table of Abbreviations obligations under the United Nations Michael J. McDermott, Chief, Security AEDPA—Anti-Terrorism and Effective Death (U.N.) Convention Against Torture and and Public Safety Division, Office of Penalty Act Other Cruel, Inhuman or Degrading Policy and Strategy, U.S. Citizenship ASC—Application Support Center Treatment or Punishment (CAT) are and Immigration Services, Department BAHA—Buy American and Hire American similarly situated to aliens granted of Homeland Security, 5900 Capital (Executive Order 13788) withholding of removal under the Gateway Drive, MD, Camp Springs BIA—Board of Immigration Appeals Immigration and Nationality Act (INA) 20746; Telephone (240) 721–3000. BLS—Bureau of Labor Statistics and regulations implementing CAT, in CAT—Convention Against Torture and Other SUPPLEMENTARY INFORMATION: This Cruel, Inhuman or Degrading Treatment or that they cannot be removed to the supplementary information section is Punishment country in question while the order organized as follows: CFR—Code of Federal Regulations deferring their removal is in place. As DCAT—Deferral of Removal Under the such, DHS is proposing to treat aliens Table of Contents Regulations Implementing the Convention granted CAT deferral of removal as I. Public Participation Against Torture employment authorized based upon the II. Executive Summary DHS—U.S. Department of Homeland grant of deferral of removal. A. Major Provisions of the Regulatory Security DOJ—U.S. Department of Justice DATES: Written comments on this Action B. Summary of Costs, Benefits, and DOL—U.S. Department of Labor proposed rulemaking must be submitted Transfer Payments DOS—Department of State on or before December 21, 2020. III. Purpose of the Proposed Rule E.O.—Executive Order Comments on the collection of A. Enforcement Priorities EAD—Employment Authorization Document information (see Paperwork Reduction B. Strengthening Protections for U.S. EOIR—Executive Office for Immigration Act section) must be received on or Workers Review before January 19, 2021. Comments on C. Exception to Employment Authorization E-Verify—Employment Eligibility both the proposed rulemaking and the Bars Verification System collection of information received on or IV. Background FARRA—Foreign Affairs Reform and A. Legal Authority Restructuring Act of 1988 before December 21, 2020 will be B. Detention and Release of Aliens Ordered FBI—The Federal Bureau of Investigation considered by DHS and USCIS. Only Removed Form I–9—Employment Eligibility comments on the collection of C. Repatriation of Aliens Ordered Removed Verification information received between December D. Withholding of Deportation or Removal Form I–765—Application for Employment 21, 2020 and January 19, 2021 will be Under the INA and Regulations Authorization

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Form I–765WS—Form I–765, Employment Notice that is available via the link in subsequent to the alien’s release from Authorization Worksheet the footer of http://www.regulations.gov. custody on an order of supervision. FY—Fiscal Year ICE—U.S. Immigration and Customs Docket: For access to the docket and • Additional requirements for Enforcement to read background documents or renewal employment authorization for IIRIRA—Illegal Immigration Reform and comments received, go to http:// aliens temporarily released on orders of Immigrant Responsibility Act of 1996 www.regulations.gov, referencing DHS supervision: DHS further proposes to IJ—Immigration Judge Docket No. USCIS–2019–0024. You may allow aliens temporarily released on an INA—Immigration and Nationality Act also sign up for email alerts on the INS—Immigration and Naturalization Service order of supervision who apply for a LCA—Labor Condition Application online docket to be notified when renewal of their employment LPR—Lawful Permanent Resident comments are posted or a final rule is authorization to have it renewed only if MOU–Memorandum of Understanding published. the alien: (1) Continues to meet the NAICS—North American Industry exception noted above, (2) demonstrates Classification System II. Executive Summary NEPA—National Environmental Policy Act economic necessity, (3) establishes that OMB—Office of Management and Budget DHS seeks to align its discretionary he or she warrants a favorable exercise PRA—Paperwork Reduction Act authority to grant employment of discretion, and (4) establishes that he RFA—Regulatory Flexibility Act authorization to aliens ordered removed or she is employed by a U.S. employer RFE—Request for Evidence and temporarily released on orders of who is a participant in good standing in Secretary—Secretary of Homeland Security supervision with its current DHS’s employment eligibility SSA—Social Security Administration immigration enforcement priorities, TLC—Temporary Labor Certification verification system (E-Verify) by TNC—Tentative Non-Confirmation which include the prompt removal of providing the U.S. employer’s name as U.N.—United Nations aliens who have received a final order listed in E-Verify and the employer’s E- 1 U.S.C.—United States Code of removal from the United States, and Verify Company Identification Number. USCIS—U.S. Citizenship and Immigration the Administration’s efforts to An alien who fails to establish that he Services strengthen protections for U.S. workers. or she is employed by an E-Verify I. Public Participation DHS is proposing to modify its employer would not be eligible for a regulations in the following areas: All interested parties are invited to renewal EAD. DHS will consider an E- • participate in this rulemaking by Employment authorization Verify employer to be a participant in submitting written data, views, eligibility for aliens temporarily released good standing if, at the time of filing of comments, and arguments on all aspects on orders of supervision: DHS proposes the application for renewal of of this proposed rule. DHS also invites to eliminate eligibility for discretionary employment authorization, the comments that relate to the economic, employment authorization under 8 CFR employer: (1) Has enrolled in E-Verify legal, environmental, or federalism 274a.12(c)(18) for aliens who have final with respect to all hiring sites in the effects that might result from this orders of removal and are temporarily United States that employ an alien proposed rule. Comments must be released from custody on orders of temporarily released on an order of submitted in English, or an English supervision pending removal except for supervision who has received translation must be provided. aliens for whom DHS has determined employment authorization under this Comments that will provide the most that their removal is impracticable rule; (2) is in compliance with all assistance to U.S. Citizenship and because all countries from whom DHS requirements of E-Verify, including but Immigration Services (USCIS) in requested travel documents have not limited to verifying the employment affirmatively declined to issue such implementing these changes will eligibility of newly hired employees at documents. DHS intends to require such reference a specific portion of the such hiring sites; and (3) continues to be aliens to establish economic necessity proposed rule, explain the reason for a participant in good standing in E- any recommended change, and include for employment during the period of the Verify at any time during the data, information, or authority that order of supervision.2 Consistent with 8 employment of the alien temporarily supports such recommended change. CFR 274a.12(e), USCIS would use the Instructions: If you submit a Federal Poverty Guidelines under Title released on an order of supervision who comment, you must include the agency 45 of the U.S. Code to determine has received employment authorization name and the DHS Docket No. USCIS– whether there is an economic necessity pursuant to this rule. 2019–0024 for this rulemaking. for employment authorization. • Limit the Employment Regardless of the method used for Additionally, DHS proposes to expand Authorization Document (EAD) validity submitting comments or material, all the current nonexhaustive list of factors period for aliens temporarily released submissions will be posted, without it considers when adjudicating an on orders of supervision: DHS proposes change, to the Federal eRulemaking application for employment to limit the validity period for an EAD Portal at http://www.regulations.gov, authorization for aliens temporarily issued under 8 CFR 274a.12(c)(18) and will include any personal released on an order of supervision to (‘‘(c)(18) EADs’’) to one year, regardless information you provide. Therefore, include: (1) The alien’s compliance with of whether the alien seeks an initial or submitting this information makes it the order of supervision conditions and renewal EAD. public. You may wish to consider (2) the alien’s criminal history, • limiting the amount of personal including but not limited to any Biometrics submission by aliens information that you provide in any criminal arrests, charges, or convictions temporarily released on orders of voluntary public comment submission supervision: DHS proposes to require that biometrics be submitted and a you make to DHS. DHS may withhold 1 This proposed rule does not affect DHS’s information provided in comments from authority to release aliens from detention or to biometric services fee be paid for by public viewing that it determines may remove aliens from the United States pursuant to aliens seeking discretionary sections 235, 236, 238, 240, and 241 of the INA, 8 impact the privacy of an individual or employment authorization under 8 CFR U.S.C. 1225, 1226, 1228, 1229a, and 1231. 274a.12(c)(18) (‘‘(c)(18) EAD is offensive. For additional information, 2 Currently, economic necessity is only a please read the Privacy and Security discretionary factor. See 8 CFR 274a.12(c)(18)(i). applicants’’). Currently, all (c)(18) EAD

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applicants submit biometrics to USCIS 3 rather than having to apply for implementing U.S. obligations under to, among other things, assist in identity employment authorization like other the CAT. The amendments to this verification and facilitate (c)(18) EAD aliens under 8 CFR 274a.12(c). DHS section also add aliens granted deferral card production. This rule proposes to proposes to amend the regulations to of removal based on the regulations codify that requirement and require that make this clarification. implementing CAT to the current they pay a biometric services fee of $30. • Specify the effective date: DHS regulation at 8 CFR 274a.12(a)(10) as See proposed 8 CFR 106.2(a)(32)(i)(C).4 proposes to apply changes made by this aliens who are employment authorized In addition, DHS proposes to use rule only to initial and renewal based solely on the grant of withholding biometrics submitted by (c)(18) EAD applications filed on or after the or deferral and are not required to apply applicants to screen for criminal history. effective date of the final rule. DHS for employment authorization. This See proposed 8 CFR 241.4(j)(3). proposes to allow aliens temporarily section also revises 8 CFR 274a.12(c)(18) • Provide aliens granted deferral of released on an order of supervision who to reflect that eligibility for employment removal under the regulations are already employment authorized authorization based on a final order of implementing the CAT employment prior to the final rule’s effective date to removal and temporary release from authorization based on the grant of remain employment authorized until custody on an order of supervision is deferral: Finally, DHS proposes to the expiration date on their EAD, unless limited to aliens whose removal is amend its regulations at 8 CFR their employment authorization is impracticable because all countries from 274a.12(a)(10) to include aliens who terminated or revoked earlier than the whom DHS has requested travel have been granted deferral of removal expiration date. USCIS would continue documents have affirmatively declined based on the regulations implementing processing any pending application for to issue such documents and who the United States’ obligations under the a replacement EAD received prior to the establish economic necessity. CAT 5 in the category of aliens who are effective date and would continue to • 8 CFR 274a.13, Applications for not required to apply for employment receive new applications for employment authorization. This section authorization to work, but will be replacement EADs because those adds a new paragraph specifically recognized as employment authorized adjudications are not considered a new addressing the filing procedures and based on the grant of deferral of grant of employment authorization but a evidentiary requirements for aliens removal.6 Currently, aliens who are replacement of an EAD based on a temporarily released from custody on an granted withholding of removal under previously authorized period of order of supervision who are seeking an section 241(b)(3) of the INA, 8 U.S.C. employment prior to the effective date initial EAD or renewing an EAD, 1231(b)(3), or CAT under 8 CFR 208.16 of the final rule. including the new requirements to: (1) and 1208.16, are employment Submit the Form I–765WS, Employment A. Major Provisions of the Regulatory authorized based solely on the grant of Authorization Worksheet (or successor Action withholding. They are not required to form), (2) establish the alien’s economic apply for employment authorization but DHS proposes the following necessity for employment, (3) provide may obtain an EAD if they wish to have regulatory amendments: the E-Verify Company Identification • a document reflecting that they are 8 CFR 106.2, Fees. DHS proposes to Number for the alien’s U.S. employer employment authorized by virtue of the amend 8 CFR 106.2(a)(32)(i) to require that participates in E-Verify and the grant of withholding. However, DHS’s that aliens who are subject to a final employer’s name as listed in E-Verify on regulations do not clearly indicate that order of removal and temporarily the application for employment aliens who are granted CAT deferral of released on an order of supervision pay authorization (renewal applicants only), removal 7 fall within the category of a $30 biometric services fee in addition and (4) submit a copy of their current aliens who should be employment to the filing fee for an application for U.S. Immigration and Customs authorized based on the grant of deferral employment authorization under 8 CFR Enforcement (ICE) Form I–220B, Order 274a.12(c)(18). of Supervision (or successor form), with • 3 At present, biometrics collection generally refers Several provisions in subpart A of a copy of the complete Personal Report to the collection of fingerprints, photographs, and part 241. DHS is amending 8 CFR 241.4, Record. The amendments also provide signatures. See https://www.uscis.gov/forms/forms- 241.5, and 241.13 to remove obsolete that the validity period for employment information/preparing-your-biometric-services- references to former Immigration and appointment (describing biometrics as including authorization under 8 CFR fingerprints, photographs, and digital signature) Naturalization Service (INS) agency 274a.12(c)(18) will not exceed (last visited May 15, 2020). titles and replace them with the increments of one year. 4 See U.S. Citizenship and Immigration Services appropriate DHS component names. Fee Schedule and Changes to Certain Other The amendments also update the B. Summary of Costs, Benefits, and Immigration Benefit Request Requirements, 85 FR section to correctly reflect the DHS Transfer Payments 46788 (Aug. 3, 2020) (Fee Rule). The Fee Rule was scheduled to go into effect on October 2, 2020. On components with authority over orders This proposed rule is estimated to September 29, 2020, the U.S. District Court for the of supervision and issuance of EADs. result in a reduction in the number of Northern District of California issued a nationwide The amendments to 8 CFR 241.4 would aliens on orders of supervision who are injunction, which prevents DHS from implementing also codify requirements for aliens who eligible for employment authorization, the Fee Schedule Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-cv-5883 (N.D. are applying for initial and renewal which could result in lost earnings for Cal. Sept. 29, 2020). DHS intends to vigorously employment authorization under the those no longer eligible. This loss of defend this lawsuit and is not changing the baseline (c)(18) category to submit biometrics at earnings would result in a transfer of for this proposed rule as a result of the litigation. costs from the alien to their support 5 an ASC and pay the associated See 8 CFR 208.16–208.18 and 1208.16–1208.18. biometric services fee. network, including family members, 6 If the alien wants a document to reflect that he • or she is employment authorized pursuant to the 8 CFR 274a.12, Classes of aliens community groups, non-profits or third- grant of deferral, the alien will need to apply for authorized to accept employment. The party organizations to provide for the an EAD with USCIS. amendments to this section clarify that alien and any dependents. In addition, 7 CAT deferral of removal is a form of protection 8 CFR 274a.12(a)(10) covers aliens DHS estimates increased filing burdens from removal similar to withholding under the regulations implementing CAT in that an alien granted withholding of removal either associated with the proposed rule for cannot be removed to the country with respect to based on section 241(b)(3) of the INA, 8 those who remain eligible for which a deferral order is in place. U.S.C. 1231(b)(3), or on the regulations employment authorization. Employers

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that currently hire workers who would renewal EADs; and (6) potential undiscounted costs would range from no longer be eligible to renew under this employment tax losses to the Federal $940,239 to $14,722,941,163. DHS rule could experience new costs due to Government. estimates $228,789,887 (annualized 7%) employee turnover and the need to DHS estimates that some aliens with as the maximum decrease in comply with the proposed E-Verify final removal orders and temporarily employment tax transfers from requirement. Finally, the proposed rule released on orders of supervision would companies and employees to the may result in a loss of tax revenue. be ineligible for discretionary EADs due Federal Government. Under the proposed rule, DHS to this proposed rule. However, DHS Table 1 provides a summary of the anticipates there would be six types of cannot estimate with precision what the proposed regulatory changes and the impacts that DHS can estimate and future eligible population would be estimated impacts of the proposed rule. quantify: (1) Potential lost earnings for because of data constraints and, BILLING CODE 9111–97–P alien workers temporarily released on therefore, relies on a range with an and Changes to Certain Other Immigration Benefit orders of supervision who may no upper and lower bound. The estimated costs of this proposed rule would range Request Requirements, final rule (‘‘Fee Schedule longer be eligible for employment Final Rule’’), and associated form changes, as the from a minimum of about $94,868, authorization; (2) increased time burden baseline. 85 FR 46788 (Aug. 3, 2020). The Fee (annualized 7%) associated with for applicants to submit forms; (3) Schedule Final Rule was scheduled to go into effect biometrics and added burdens for on October 2, 2020. On September 29, 2020, the added time and costs for applicants to relevant filing forms to a maximum of U.S. District Court for the Northern District of submit biometrics; (4) labor turnover California issued a nationwide injunction, which $1,496,016,941 (annualized 7%) should costs that employers of alien workers prevents DHS from implementing the Fee Schedule no replacement labor be found for aliens with orders of supervision could incur Final Rule. See, Immigrant Legal Resource Center on orders of supervision who would be v. Wolf, No. 4:20–cv–5883 (N.D. Cal. Sept. 29, when their employees’ EADs expire and ineligible for employment authorization 2020). DHS intends to vigorously defend this are not renewed; (5) costs to employers lawsuit and is not changing the baseline for this under this rule.8 The ten-year to enroll in and maintain an E-Verify rule as a result of the litigation. Should DHS not prevail in the Fee Schedule Final Rule litigation, account as a participant in good 8 DHS estimates some of the costs and benefits of this rule may reflect understated costs associated standing to retain workers with orders this rule using the newly published U.S. with biometrics fees and overstated benefits of supervision who are applying for Citizenship and Immigration Services Fee Schedule associated with filing Form I–765.

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BILLING CODE 9111–97–C companies are unable to find reasonable rule, including E-Verify, biometrics, The impacts of reducing the number labor substitutes for the position the labor turnover, and additional form of aliens temporarily released on orders aliens temporarily released on orders of burdens. These costs exist under both of supervision that are eligible for EADs supervision would have filled then a scenarios described above, and thus include both potential distributional maximum of $1,495,358,741 $94,868 is the minimum cost of the rule impacts (transfers) and costs. USCIS (annualized 7%) is the estimated (annualized 7%). uses the lost compensation to aliens monetized cost of this provision, and $0 DHS is aware that the outbreak of temporarily released on orders of is the estimated monetized transfers COVID–19 will likely impact these supervision that are no longer eligible from these aliens to other workers. In estimates in the short run.9 As for EADs as a measure of the impact of discussed above, the analysis presents a this change—either as distributional addition, under this scenario where jobs range of impacts, depending on if impacts (transfers) from these aliens to would go unfilled, there would be a loss companies are able to find replacement others or as a proxy for businesses’ cost of employment taxes to the Federal labor for the jobs alien workers for lost productivity. If all companies Government. USCIS estimates temporarily released on orders of are able to easily find reasonable labor $228,789,887 (annualized 7%) as the supervision would have filled. In substitutes for the positions the aliens maximum decrease in employment tax September 2020, the unemployment rate temporarily released on orders of transfers from companies and supervision would otherwise have employees to the Federal Government. 9 The two scenarios described above On March 13, 2020, the President declared that filled, DHS estimates a maximum of the COVID–19 outbreak in the United States $1,495,358,741 (annualized at 7%) represent the estimated endpoints for constitutes a national emergency. See ‘Proclamation would be transferred from these workers the range of monetized impacts on Declaring a National Emergency Concerning the to others in the labor force (or induced resulting from the provisions that affect Novel Coronavirus Disease (COVID–19) Outbreak,’ available at https://www.whitehouse.gov/ back into the labor force). Under this employment eligibility for aliens presidential-actions/proclamation-declaring- scenario, there would be no federal temporarily released on orders of national-emergency-concerning-novel-coronavirus- employment tax losses. Conversely, if supervision. There are other costs of the disease-covid-19-outbreak/.

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was 7.9 percent.10 This is an pandemic, with additional available or less impacted by the COVID–19 improvement on April’s 14.7 percent labor nationally, companies are more pandemic. Accordingly, DHS cannot which marked the highest likely to find replacement labor for the estimate with confidence to what extent unemployment rate and the largest over- job the alien on an order of supervision the impacts will be transfers instead of the-month increase in the history of the would have filled.13 Thus, in the short- costs. series (seasonally adjusted data are run during the pandemic and the DHS’s assumption that all applicants available back to January 1948).11 By ensuing economic recovery, the lost with an EAD are able to obtain comparison, the unemployment rate for compensation to EAD applicants as a employment (discussed in further detail 12 result of this rule is likely to mean that September 2019 was 3.5%. DHS later in the analysis), also does not the costs of the rule will be lower than assumes that during the COVID–19 reflect impacts from the COVID–19 they would otherwise have been. DHS pandemic. It is not clear what level of notes that although the pandemic is 10 Department of Labor, Bureau of Labor reductions the pandemic will have on widespread, the severity of its impacts Statistics, The Employment Situation—September the ability of EAD holders to find jobs 2020. Available at: https://www.bls.gov/ varies by locality. Consequently, it is _ (as jobs are less available), or how DHS news.release/archives/empsit 10022020.pdf. not clear to what extent the distribution 11 In April 2020, the unemployment rate of alien workers temporarily released on would estimate such an impact with any increased by 10.3 percentage points to 14.7 percent. orders of supervision overlaps with precision given available data. Department of Labor, Bureau of Labor Statistics, Consequently, the ranges projected in The Employment Situation—April 2020. Available areas of the country that will be more at: https://www.bls.gov/news.release/archives/ this analysis regarding lost _ empsit 05082020.pdf. 13 The Congressional Budget Office estimates the compensation are expected to be an 12 Department of Labor, Bureau of Labor unemployment rate is expected to average close to overestimate, especially in the short- Statistics, The Employment Situation—September 14 percent during the second quarter, See: CBO’s run. The range of impacts described by 2019, Employment Situation Summary Table A. Current Projections of Output, Employment, and the scenarios above, plus the Household data, seasonally adjusted. Available at: Interest Rates and a Preliminary Look at Federal https://www.bls.gov/news.release/archives/empsit_ Deficits for 2020 and 2021 https://www.cbo.gov/ consideration of the other costs, are 10042019.pdf. publication/56335 April 24, 2020. summarized in Table 2 below.

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BILLING CODE 9111–97–P

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

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workers (scenario presented in Tables 2(A) and (B)).

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BILLING CODE 9111–97–C would have spent time submitting any regulations inconsistent with this The benefits potentially realized by evidence under any of the (c)(18) E.O. the proposed rule are both qualitative considerations. It is also the policy of the and quantitative. Under this proposed III. Purpose of the Proposed Rule Administration to administer our rule, a U.S. worker may have a better immigration laws to create higher wages chance of obtaining jobs that some It is the Administration’s policy to and employment rates for workers in the (c)(18) alien workers currently hold, as ensure the prompt removal of aliens United States. See Exec. Order No. the proposal would reduce employment who have been issued a final order of 13788, ‘‘Buy American and Hire authorization eligibility for this removal. In 2017, President Trump American’’ (BAHA), 82 FR 18837 (Apr. population of aliens who have been issued Executive Order (E.O.) 13768, 18, 2017). E.O. 13788 directed the ordered removed from the country. ‘‘Enhancing Public Safety in the Interior Secretary to propose new rules to Second, the proposed rule may reduce of the United States,’’ 82 FR 8799 (Jan. supersede or revise current rules to the incentive for aliens to remain in the 25, 2017). This E.O. noted that the protect the interests of U.S. workers in United States after receiving a final enforcement of our immigration laws is the administration of the immigration order of removal, which could reduce critically important to the national system. Given the significant the amount of government resources security and public safety of the United disruptions COVID–19 has caused to the expended on enforcing removal orders States. The continued presence in the U.S. economy and labor market, the for such aliens as well as monitoring United States of aliens with final orders President also issued Proclamation and tracking aliens temporarily released of removal, many of whom are criminals 10052, ‘‘Suspending Entry of on orders of supervision. Third, DHS who have served time in our Federal, Immigrants and Nonimmigrants Who clarifies that aliens granted CAT deferral State, and local jails and who have been Present a Risk to the U.S. Labor Market of removal would no longer need to determined in immigration proceedings During the Economic Recovery submit Form I–765 in order to become to be ineligible to remain in the country, following the 2019 Novel Coronavirus employment authorized after the is contrary to the national interest. For Outbreak’’ 85 FR 38263 (June 22, 2020). effective date of the final rule. DHS this reason, the E.O. directed the Proclamation 10052, among other estimates the total benefits for this Secretary of Homeland Security (the things, requires the Secretary to take population would range from $0 to Secretary) to prioritize the removal of appropriate steps ‘‘to prevent certain $105,690 annually. Additional savings aliens from the United States who have aliens who have final orders of removal; could also be accrued in the form of final orders of removal and to publish . . . from obtaining eligibility to work opportunity costs of time if applicants new regulations revising or rescinding in the United States.’’ 85 FR at 38266.

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Obtaining employment authorization economy and the labor market recover orders of removal. Sections 241(a)(1) in the United States has long been, and from the significant disruptions caused and (2) of the INA, 8 U.S.C. 1231(a)(1), continues to be, a significant incentive by the COVID–19 pandemic. (2), provide for a 90-day removal period for aliens to migrate to (legally and A. Enforcement Priorities in which the Secretary is authorized to illegally) and remain in the United detain the alien and within which the States. As such, employment Enforcement of the nation’s Secretary shall remove the alien. authorization must be carefully immigration laws is essential to the However, the removal of aliens from the integrity of the immigration system. It regulated to maintain the integrity of the United States and repatriation 16 to their ensures that only those who are legally U.S. immigration system. Many aliens home countries can be a difficult and qualified and lawfully in the United ordered removed have been released time-consuming process that can be from DHS custody on OSUP because States are allowed to avail themselves of any benefits under the INA. In 1996, further complicated and impeded by a some countries unreasonably delay lack of sufficient agency resources or issuance of travel documents or due to Congress passed the Anti-Terrorism and legal constraints. Delays in removal also lack of good faith efforts by the alien. In Effective Death Penalty Act (AEDPA), can occur because some countries addition, because of the Supreme Public Law 104–132, title IV; 110 Stat. Court’s decision in Zadvydas, DHS must 1214 (Apr. 24, 1996) and the Illegal unreasonably delay the issuance of release aliens within a presumptively Immigration Reform and Immigrant travel documents, or unreasonably delay reasonable 6-month period, which in Responsibility Act of 1996 (IIRIRA), accepting the repatriation of their 17 many instances is not sufficient time for Public Law 104–208, div. C; 110 Stat. nationals. Based on data on removals DHS to obtain the travel documents 3009 (Sept. 28, 1996). AEDPA and executed by DHS, it may take DHS 6 needed to remove the alien from the IIRIRA made sweeping changes to U.S. months or longer to obtain travel United States. Further, many of these immigration laws focusing on documents and remove an alien from aliens are criminals whose continued immigration enforcement, detention of the United States. For example, in Fiscal presence in the United States is not in aliens, and bars to certain types of relief Year (FY) 2017, the average time for the national interest. DHS has identified or protection from removal and grants of DHS to remove an alien who had a final that providing an ‘‘open market’’ legal status. IIRIRA expanded the order and was temporarily released on employment authorization to aliens Attorney General’s (now Secretary’s) an order of supervision was 321.39 with final removal orders exacerbates authority 14 to detain aliens, including days.18 However, in FY 2018, the the challenges in effectuating removal requiring mandatory detention of aliens number of days it took DHS to remove by incentivizing such aliens to remain convicted of aggravated felony offenses an alien who had a final order and was in the United States and possibly and the detention of aliens pending temporarily released on an order of compete for jobs against U.S. workers removal from the United States. It also supervision decreased to just over 6 instead of complying with their removal created an expedited removal process months (average time to remove was orders, working with the country of for aliens seeking admission into the 187.19 days).19 removal to obtain travel documents in a United States who do not have proper timely manner, and departing the documents or who make material While DHS has authority to detain United States. misrepresentations, and, as designated aliens with final orders of removal Through this proposed rule, DHS by the Secretary, aliens who have not during the removal period, if DHS seeks to promote the integrity of the been inspected and admitted or paroled cannot effectuate an alien’s removal in immigration system by eliminating into the United States and cannot prove a presumptively reasonable 6-month discretionary employment authorization they have been in the United States for removal period, DHS must generally for those who have a final order of at least two years.15 By passing AEDPA release such aliens from detention. See removal and encouraging their efforts to and IIRIRA, Congress made clear that generally Zadvydas v. Davis, 533 U.S. obtain travel documents in timely enforcement of the immigration laws is 678 (2001).20 Due to the U.S. Supreme manner and depart the United States. a priority and is critical for purposes of Court’s decision in Zadvydas, DHS has The proposed rule would also help national security, public safety, and the had to release thousands of aliens from strengthen protections for U.S. workers integrity of the U.S. immigration system. detention as illustrated in Table 4, and minimize the risk of disadvantaging Unfortunately, DHS is not always able including aliens convicted of aggravated U.S. workers, especially as the U.S. to promptly remove aliens with final felonies and other serious crimes.

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).

14 On March 1, 2003, the functions of the former 16 Repatriation includes repatriation of aliens to 18 Id. Immigration and Naturalization Service related to the country of nationality or citizenship as well as 19 Id. border security were transferred to the Secretary. to the country of last habitual residence. 20 See infra Section IV, paragraph B for additional The Homeland Security Act, Public Law 107–296, 17 See DHS Office of Inspector General Report, 441(c) (6 U.S.C. 251(2)). discussion of the Zadvydas decision. ‘‘ICE Faces Barriers in Timely Repatriation of 15 See, e.g., H.R. Conf. Rep. 104–828, title III, subtitle A (1996). Detained Aliens,’’ OIG–19–28 (Mar. 11, 2019).

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

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 is eligible for a discretionary benefit. issued Proclamation 10052, which prompt removal of aliens ordered Further, the current regulation does not describes that significant disruptions removed a priority for the put the public on notice of when DHS COVID–19 has caused to the U.S. Administration and directed the will deem the removal of an alien to be economy and the detrimental impact of Secretary to publish new regulations impracticable or what DHS has foreign workers on the U.S. labor market revising or rescinding any regulations determined to be in the public interest during the high domestic that are inconsistent with the E.O. As a for the purpose of granting employment unemployment. To address this result of its regulatory review, DHS authorization to aliens with final orders concern, Proclamation 10052, in examined the current regulation at 8 of removal. addition to suspending the entry of CFR 274a.12(c)(18) governing As previously stated, the ability to certain immigrants and nonimmigrants employment eligibility for aliens with a obtain employment authorization into the United States, requires the final removal order and temporarily provides aliens a significant motivation Secretary to take appropriate steps to released on orders of supervision. DHS to remain in the United States. DHS has prevent certain aliens who have final determined that this regulation is determined that providing employment orders of removal from obtaining inconsistent with the Administration’s authorization to aliens who have final eligibility to work in the United States. orders of removal, except in very enforcement priorities because it allows This proposed rule aligns with the limited circumstances, undermines the virtually any alien temporarily released Administration’s goals of protecting on an order of supervision to qualify for removal scheme created by Congress and incentivizes such aliens to remain U.S. workers in the labor market, employment authorization and, as such, particularly as the economy recovers incentivizes such aliens to remain in the in the United States instead of complying with their removal orders, from the extraordinary disruptions United States instead of complying with resulting from the COVID–19 outbreak. their removal order and departing the working with the country of removal to obtain travel documents in a timely The U.S. unemployment rose to a record United States. high of 14.7 percent in April 2020 23 but manner, and departing the United 24 The current regulation simply restates States. The revisions under this declined to 7.9 percent in September. the language of INA section 241(a)(7), 8 proposed rule will address these However, it remains above 3.5%, which U.S.C. 1231(a)(7) and does not clearly concerns and align the issuance of was unemployment rate for the same 25 place the burden on the alien to employment authorization with the month last year (i.e., September 2019). establish that he or she warrants a Administration’s enforcement priorities. DHS asserts it is likely that some aliens favorable exercise of discretion to obtain with final orders of removal and employment authorization. It also does B. Strengthening Protections for U.S. temporarily released on an order of not require an alien who has a final Workers supervision may compete for, and order of removal and has been DHS also wants to ensure that any potentially occupy, jobs that U.S. temporarily released on an order of discretionary grant of employment workers might have applied for and supervision to clearly establish on what authorization to aliens is consistent been offered, particularly during this basis he or she is seeking employment with the Administration’s efforts to period of high unemployment. Aliens authorization, either under INA section strengthen protections for U.S. workers temporarily released on an order of 241(a)(7)(A), because every country and minimize the risk of disadvantaging supervision who apply for employment designated by the alien or under that U.S. workers. authorization under the current section has refused to receive the alien, As noted above, E.O. 13788 directed regulatory scheme receive an ‘‘open or under INA section 241(a)(7)(B), DHS to propose new rules to supersede market’’ EAD, meaning they may accept because removal is impracticable or or revise current rules to protect the employment in any field and may be against the public interest. The burden interests of U.S. workers 22 in the hired by any U.S. employer without the is on the alien, not the U.S. administration of the immigration U.S. employer having to demonstrate Government, to establish that he or she system. More recently, the President that there were no available U.S.

21 ‘‘Convicted criminal’’ means an immigration section 207 of the INA, is granted asylum under 24 Department of Labor, Bureau of Labor violator with a criminal conviction entered into section 208 of the INA, or is an immigrant Statistics, The Employment Situation—September ICE’s systems of record at the time of the otherwise authorized to be employed by the INA or 2020. Available at: https://www.bls.gov/ enforcement action. the Attorney General. INA 212(n)(4)(E), 8 U.S.C. news.release/pdf/empsit.pdf. 22 Section 1(e) of E.O. 13788 refers to the 1182(n)(4)(E). 25 Department of Labor, Bureau of Labor definition for U.S. worker as either an employee 23 Department of Labor, Bureau of Labor Statistics, The Employment Situation—September who is a citizen or national of the United States; Statistics, The Employment Situation—April 2020. or is an alien who is lawfully admitted for Available at: https://www.bls.gov/news.release/ 2019, Available at: https://www.bls.gov/ _ permanent residence, is admitted as a refugee under archives/empsit_05082020.pdf. news.release/archives/empsit 10042019.pdf.

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workers or to guarantee that it will pay that their removal is impracticable during the fiscal year in which the the prevailing wage or maintain certain because all countries from whom DHS aliens were counted (Table 6).26 work conditions. has requested travel documents have Additionally, the percentage of aliens affirmatively declined to issue such for whom DHS cannot obtain travel C. Exception to Employment documents and (2) the aliens establish documents has averaged about 5 percent Authorization Bars economic necessity. of aliens temporarily released on an DHS recognizes that there are certain DHS anticipates that the number of order of supervision since FY 2015. times an alien cannot be removed from aliens who are subject to a final order DHS believes that the number of aliens the United States because DHS is unable of removal for whom DHS has who would qualify for this exception to obtain travel documents from a determined that their removal is will remain small because even after an country of removal. Therefore, DHS is impracticable will be relatively small. alien is temporarily released on an order proposing to create a narrow exception For example, in FY 2019, only about 4.8 of supervision, DHS continues to work to the bar to employment authorization. percent (659) of aliens who were with the foreign governments to obtain DHS will continue to allow aliens who temporarily released on an order of travel documents and DHS sometimes are subject to a final order of removal to supervision (13,766) could not be receives travel documents for such apply for discretionary employment removed in that fiscal year due to DHS’s aliens shortly after their release or authorization if (1) DHS has determined inability to obtain travel documents within the following 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 for Approximate percentage Fiscal year temporarily released on 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 Period ...... 9,365 459 4.9 * Data from ICE ERO, LESA Statistical Tracking Unit (FY 2015 to FY 2019).

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

26 In certain instances, DHS was able to obtain for assistance in the investigation or prosecution of 29 See INA sec. 101(a)(15)(S) (Eligibility travel documents for aliens in the next fiscal year. human trafficking). requirements include providing law enforcement 27 See INA sec. 101(a)(15)(T) (Eligibility 28 See INA sec. 101(a)(15)(U) (Eligibility critical, reliable information necessary to the requirements include compliance with any requirements include helpfulness to law successful investigation or prosecution of a criminal enforcement in the investigation or prosecution of reasonable request from a law enforcement agency organization). a qualifying crime).

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order of removal who has been Secretary proposes the changes in this that removal is not likely to occur in the temporarily released on an order of rule under these authorities. reasonably foreseeable future, the alien must generally be temporarily released supervision will be eligible for B. Detention and Release of Aliens on an order of supervision. During this employment authorization. This Ordered Removed includes aliens who may have period of release, the alien is required previously been eligible for employment Section 241 of the INA, 8 U.S.C. 1231, to continue to make efforts (or assist in authorization based on the public governs the detention, release, and efforts) towards his or her removal, and interest clause of section 241(a)(7)(B) of removal of aliens who are subject to DHS will continue to pursue the alien’s 31 the INA, 8 U.S.C. 1231(a)(7)(B), or based final orders of removal. When an alien removal.38 section 241(a)(7)(A) of the INA, 8 U.S.C. is issued a final order of removal, DHS If an alien is temporarily released on generally has 90 days after issuance of 1231(a)(7)(A). Furthermore, for purposes an order of supervision, the order of the final order of removal to remove the of determining employment eligibility supervision will contain conditions for alien from the United States.32 This 90- only, DHS further clarifies that an release including requiring the alien to day removal period can be extended if appear periodically before an alien’s removal is ‘‘otherwise the alien fails or refuses to make timely immigration officer and comply with impracticable’’ under section application in good faith for travel or the conditions prescribed in the order of 241(a)(7)(B) of the INA when DHS other documents necessary for the supervision.39 INA section 241(a)(3), 8 determines that all countries from alien’s departure or conspires or acts to U.S.C. 1231(a)(3); 8 CFR 241.5(a). If an whom DHS has requested travel prevent removal.33 Section 241(a)(2) of alien fails to comply with the conditions documents have affirmatively declined the INA, 8 U.S.C. 1231(a)(2), requires for release as specified in the order of to issue a travel document. detention during the removal period supervision, DHS can take the alien DHS believes that exercising its and specifically prohibits DHS from back into custody and detain the alien discretionary authority as provided in releasing an alien who has been found until he or she is removed. Aliens who this proposed rule promotes the inadmissible under sections 212(a)(2) or willfully fail to comply with an order of protection of U.S. workers while 212(a)(3)(B), 8 U.S.C. 1182(a)(2), supervision can also be criminally ensuring the faithful execution and (a)(3)(B), or deportable under sections prosecuted under section 243(b) of the enforcement of the immigration laws. 237(a)(2) or 237(a)(4)(B) of the INA, 8 INA, 8 U.S.C. 1253(b). U.S.C. 1227(a)(2), (a)(4)(B). C. Repatriation of Aliens Ordered IV. Background In certain instances, DHS is not able Removed A. Legal Authority to remove aliens within the 90-day period after issuance of the final order Once an alien has been issued a final DHS’s authority to detain and release of removal. In such cases, DHS must order of removal, ICE is responsible for from custody aliens subject to final comply with the U.S. Supreme Court’s effectuating the alien’s removal from the orders of removal on orders of decision in Zadvydas.34 In Zadvydas, United States pursuant to section 241 of supervision and to grant employment the U.S. Supreme Court held that an the INA, 8 U.S.C. 1231, and 8 CFR 241. authorization is found in several alien with a final order of removal Generally, a travel document must be statutory provisions. Section 102 of the cannot be kept in detention (unless obtained from a foreign government that Homeland Security Act of 2002 (HSA) special circumstances exist) 35 once it will allow the alien to depart the United (Pub. L. 107–296, 116 Stat. 2135), 6 has been determined that there is not a States and be repatriated either to the alien’s country of birth, citizenship, U.S.C. 112 and section 103 of the INA, ‘‘significant likelihood of removal in the 36 nationality, or last habitual residence or 8 U.S.C. 1103, charge the Secretary with reasonably foreseeable future.’’ The to an alternate country that has agreed the administration and enforcement of Court established six months as the to accept the alien. As indicated earlier, the immigration and naturalization laws ‘‘presumptively reasonable period of based on data on removals for FY 2018, of the United States.30 In addition to detention.’’ After the six-month period, once the alien provides good reason to it takes DHS an average of a little over establishing the Secretary’s general 6 months to obtain travel documents authority to administer and enforce believe there is no significant likelihood of removal in the reasonably foreseeable and remove an alien from the United immigration laws, section 103 of the States.40 INA enumerates various related future, the Government must respond with sufficient evidence to rebut that However, obtaining travel documents authorities including the Secretary’s is not always easy. Some countries showing.37 In the event DHS determines authority to establish regulations refuse or unreasonably delay the necessary for carrying out his authority. issuance of the necessary travel Section 241 of the INA, 8 U.S.C. 1231, 31 Aliens subject to an expedited removal order, however, are not subject to release on an order of documents to aliens who have been governs the detention, release, and supervision. INA sec. 235(b)(1)(B)(iii)(IV), 8 U.S.C. issued a final order of removal. removal of aliens after they have 1225(b)(1)(B)(iii)(IV) (an alien subject to expedited Countries that unreasonably delay received an administratively final order removal under section 235 ‘‘shall be detained pending a final determination of credible fear [ ] 38 of removal. Section 274A of the INA, 8 and, if found not to have such a fear, until See 8 CFR 241.5(a). U.S.C. 1324a, governs employment of removed).’’ 39 DHS may also require that an alien temporarily aliens who are authorized to be 32 INA sec. 241(a)(1)(A), (B)(i), 8 U.S.C. released on an order of supervision to post a bond 1231(a)(1)(A), (B)(i). of a sufficient amount to ensure that the alien employed by statute or in the discretion complies with the terms for release, including 33 INA sec. 241(a)(1)(C), 8 U.S.C. 1231(a)(1)(C). of the Secretary and the requirements surrendering him or herself to DHS custody for 34 U.S. employers must follow to verify the 533 U.S. 678 (2001). removal. 8 CFR 241.5(b). 35 identity and employment authorization Under 8 CFR 241.14, aliens with ‘‘special 40 Furthermore, it should also be noted that even circumstances’’ are those: (1) That have a highly though the average time to obtain travel documents of their employees. The authority to contagious disease that threatens public safety; (2) across all countries was a little over six months, the establish and operate E-Verify is found whose release would have serious adverse foreign process for negotiating with foreign governments to in sections 401–405 of IIRIRA, Public policy implications; (3) who present a significant obtain travel documents is dynamic. While there threat to national security or significant risk of Law 104–208, 110 Stat. 3009–546. The may be a period of inactivity by a particular foreign terrorism; or (4) who are specially dangerous. government to cooperate with issuing travel 36 Zadvydas, 533 U.S. at 701. documents, a policy shift can also occur quickly 30 Public Law 104–208, div. C, at secs. 401–405. 37 Id.; see also 8 CFR 241.13(d). and result in prompt repatriation.

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accepting the repatriation of their particular social group, or political 1208.17. In such instances, the IJ or BIA citizens or nationals impede DHS’s opinion.’’ 43 The United States is also a defers removal to that country. ability to remove the alien in a timely party to the CAT. Article 3 of the CAT Withholding of deportation or manner and interfere with the United requires that ‘‘[n]o State Party shall removal based on section 241(b)(3) of States’ sovereign interest in enforcing its expel, return (‘refouler’) or extradite a the INA, 8 U.S.C. 1231(b)(3), or the immigration laws. Under section 243(d) person to another state where there are regulations implementing CAT (if the of the INA, 8 U.S.C. 1253(d), the substantial grounds for believing that he alien is not subject to a mandatory bar) Secretary has the authority to notify the would be in danger of being subjected and CAT deferral of removal are Secretary of State that a specific country to torture.’’ 44 mandatory and must be granted if the is refusing or unreasonably delaying alien meets the burden of proof. See 8 acceptance of its nationals. Upon such Though neither of these treaties is CFR 208.16(c)(4) and 208.17(a). Once an notification from the Secretary, the self-executing, the United States has alien has been granted withholding of Secretary of State shall order consular implemented its non-refoulement removal or deferral of removal, DHS officers in that country to discontinue obligations under them in statute and cannot remove the alien to the country issuing immigrant visas, nonimmigrant regulations. With respect to the from which removal has been withheld visas, or both to citizens and nationals Protocol, Congress implemented the or deferred unless the alien’s case is of that country.41 While DHS and DOS United States’ non-refoulement reopened and withholding is terminated work through various diplomatic obligations as part the Refugee Act of under 8 CFR 208.24 or 1208.24, or channels and avenues to get such 1980, section 241(b)(3) of the INA, 8 deferral is terminated under 8 CFR countries to comply, and most countries U.S.C. 1231(b)(3). With respect to the 208.17 or 1208.17. In most instances an do comply, there are countries that CAT, Congress directed the appropriate alien granted withholding of removal or refuse to assist in the repatriation of agencies to publish regulations to deferral of removal under the their citizens and nationals, and as a implement the United States’ regulations implementing CAT will be result, the United States has imposed obligations under Article 3 of the CAT released pursuant to an order of visa sanctions under section 243(d) of in the Foreign Affairs Reform and supervision, but such an order does not the INA, 8 U.S.C. 1253(d), to get such Restructuring Act of 1988 (FARRA), alter or affect the nondiscretionary countries to cooperate.42 Public Law 105–277, Div. G., § 2442(b) nature of the withholding or deferral of (Oct. 21, 1998). DOJ published removal grant, even if the alien D. Withholding of Removal Under the subsequently violates the conditions for INA and Regulations Implementing CAT regulations in 1999 implementing FARRA § 2442. See 64 FR 8478–01 release as specified in the order of and Deferral of Removal Under supervision. Such violations could Regulations Implementing CAT (1999). The regulations governing withholding of removal based on result in a return of the alien to ICE Even if the alien is inadmissible or section 241(b)(3) of the INA, 8 U.S.C. custody but will not result in the alien’s deportable and has a final order of 1231(b)(3), and CAT are now codified at actual removal from the United States removal, DHS’s ability to remove an 8 CFR 208.16 through 208.18 and 8 CFR unless the alien’s case is reopened and alien in certain cases is further 1208.16 through 1208.18. withholding is terminated under 8 CFR restricted by U.S. treaty obligations. The 208.24 or 1208.24, or deferral is United States is a party to the 1967 Aliens granted withholding of terminated under 8 CFR 208.17 or Protocol relating to the Status of removal based on section 241(b)(3) of 1208.17. Refugees (Protocol), which incorporates, the INA, 8 U.S.C. 1231(b)(3), as well as inter alia, Article 33 of the 1951 aliens granted withholding of removal E. Employment Authorization Convention relating to the Status of based on the regulations implementing Whether an alien is authorized to Refugees. 198 U.N.T.S. 137. Article 33 CAT, 8 CFR 208.16(c), are both subject work in the United States depends on specifically provides that ‘‘[n]o to mandatory bars to withholding if the the alien’s status in the United States contracting state shall expel or return alien participated in the persecution of and whether employment is specifically (refouler) a refugee in any manner others, is a human rights violator, or has authorized by statute or only authorized whatsoever to the frontier of territories been convicted of a particularly serious pursuant to the Secretary’s discretion. where his life or freedom would be crime.45 However, even if an alien is not There are very few statutory provisions threatened on account of his race, eligible for withholding under the that require the Secretary to grant religion, nationality, membership of a provisions noted above because he or employment authorization.46 While she is subject to one of the mandatory some statutory provisions specifically 41 In 2017, DHS and DOS entered into a bars to withholding, DHS still is not allow the Secretary to grant employment Memorandum of Understanding (MOU) Concerning 47 permitted to remove an alien from the authorization as a matter of discretion, the Removal of Aliens, which superseded the 2011 the Secretary’s general authority under ICE and DOS Bureau of Consular Affairs MOU United States if an IJ or the Board of Concerning Repatriation. The new MOU creates a Immigration Appeals (BIA) has section 274A(h)(3) of the INA, 8 U.S.C. framework for effectuating repatriations, sets forth determined that removal would result in tools the agencies will use to encourage countries 46 See, e.g., INA sec. 214(c)(2)(E), 8 U.S.C. to accept the return of their nationals, and the alien being removed to a country 1184(c)(2)(E) (requiring spouses of L nonimmigrants establishes a target travel document issuance time where he or she would more likely than to be employment authorized); INA sec. 214(e)(6), of 30 days. not be tortured. 8 CFR 208.17 and 8 U.S.C. 1184(e)(6) (requiring spouses of E treaty 42 Visa sanctions have been previously invoked traders/investors to be employment authorized; INA under INA Section 243(d) against the following sec. 214(p), 8 U.S.C. 1184(p) (requiring U countries: Guyana in 2001; The Gambia in 2016; 43 Convention relating to the Status of Refugees nonimmigrants to be employment authorized). Cambodia, Eritrea, Guinea, and Sierra Leone in art. 33, opened for signature July 28, 1951, 198 47 See, e.g., INA sec. 106(a), 8 U.S.C. 1105a 2017; Burma and Laos in 2018; Cuba, Ghana, and U.N.T.S. 137. (providing that the Secretary may grant Pakistan in 2019; and Burundi and Ethiopia in 44 Convention against Torture and Other Cruel, employment authorization to spouses and children 2020. Visa sanctions have since been lifted against Inhuman or Degrading Treatment or Punishment art of certain nonimmigrants who were battered or Guyana, Guinea, and The Gambia. See ‘‘Visa 3, ratified Oct. 21, 1994, 1465 U.N.T.S. 85. subjected to extreme cruelty); INA sec. 214(p)(6), 8 Sanctions Against Two Countries Pursuant to 45 8 CFR 208.16(d)(2) specifically notes that an U.S.C. 1182(p)(6) (providing that the Secretary may Section 243(d) of the Immigration and Nationality application for withholding of removal under CAT grant employment authorization to aliens who have Act,’’ at https://www.ice.gov/visasanctions (Last shall be denied if the applicant falls within INA filed a bona fide application for U nonimmigrant updated Aug. 13, 2020). section 241(b)(3)(B). status).

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1324a(h)(3), is used to establish most adjudicate immigration benefits, and requested travel documents have discretionary employment authorization perform other functions related to the affirmatively declined to issue such categories. However, in the context of administration of the INA. See id. DHS documents. See proposed 8 CFR aliens ordered removed, section is also authorized to charge a biometric 274a.12(c)(18). Providing EADs to aliens 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), services fee associated with the who do not fall within this exception specifically prohibits an alien who has submission of biometric information. undermines the integrity of the been ordered removed from the United See 8 CFR 103.17. immigration system by incentivizing States from being eligible to receive V. Discussion of the Proposed Rule aliens with a final removal order to employment authorization unless the remain in the United States instead of Secretary determines that the alien A. Eligibility for Employment complying with their removal orders, cannot be removed because no country, Authorization for Aliens on Orders of obtaining travel documents in a timely as designated by the alien or delineated Supervision manner, and departing the United under section 241(b) of the INA, 8 Section 241(a)(7) of the INA, 8 U.S.C. States. U.S.C. 1231(b), will accept the alien or 1231(a)(7), specifically prohibits an Encouraging aliens who do not fall the alien’s removal is impracticable or alien who has been ordered removed within the exception provided in this contrary to the public interest. from the United States from being rule to timely depart the United States DHS regulations at 8 CFR 274a.12 set eligible to receive employment also promotes the efficient use of DHS’s forth the categories of aliens who are authorization unless the Secretary, in limited resources. Managing the vast authorized to work in the United States, the Secretary’s discretion, determines, number of aliens on OSUP consumes an including; those aliens who are under subparagraph (a)(7)(A), that the inordinate amount of DHS resources. authorized to work incident to their alien cannot be removed because no Management of aliens temporarily status (8 CFR 274a.12(a)); aliens who are country, as designated by the alien or released on OSUP requires tracking and authorized to work in the United States delineated under section 241(b) of the monitoring the status of such aliens, as but only for a specific employer (8 CFR INA, 8 U.S.C. 1231(b), will accept the well as conducting regular check-ins to 274a.12(b)); and aliens who fall within alien or, under subparagraph (a)(7)(B), 8 ensure compliance with the conditions a category that the Secretary has U.S.C. 1231(a)(7)(B), the alien’s removal of release. This time intensive process determined may be employment is impracticable or contrary to the takes away from other enforcement authorized as a matter of discretion (8 public interest. Neither the INA nor the priorities such identifying, detaining, CFR 274a.12(c)). Aliens seeking regulations mandate issuance of and removing criminal aliens. The employment authorization generally employment authorization for any alien proposed rule also aligns with the must file an application with USCIS subject to a final order of removal or Administration’s goals of strengthening with the appropriate fee (unless waived) based on such alien’s temporary release protections for U.S. workers in the labor and in accordance with the form from custody on an order of market. It helps strengthen protections instructions. See 8 CFR 274a.13. supervision. The statute preserves the for U.S. workers and minimize the risk Secretary’s discretion to decide if F. Biometric Submission of disadvantaging U.S. workers, employment authorization should be especially as the economy and the labor Current DHS regulations provide granted and, if yes, to which classes of market recovers from the significant general authorities for USCIS to require aliens based upon a finding under disruptions caused by the COVID–19 the submission of biometrics in subparagraph (A) or (B) of section pandemic. connection with immigration benefits. 241(a)(7) of the Act, 8 U.S.C. See 8 CFR 103.2(b)(9). DHS has the 1231(a)(7)(A), (B). DHS has determined that continuing authority to require the submission of DHS is proposing to amend 8 CFR to provide employment authorization to biometrics from any applicant, 274a.12(c)(18) to eliminate eligibility for those aliens who fall within the petitioner, sponsor, beneficiary, or employment authorization for all aliens exception provided in this rule is requestor, or individual filing a request, who have final orders of removal and consistent with the impracticability on a case-by-case basis, through form are temporarily released from custody clause of INA section 241(a)(7)(B), 8 instructions, or by a Federal Register on an order of supervision except for U.S.C. 1231(a)(7)(B). Table 7 below notice. See 8 CFR 103.16. Current aliens for whom DHS has determined shows the number of aliens for whom regulations allow DHS to use the that their removal from the United DHS cannot obtain travel documents biometric information to conduct States is impracticable because all annually out of the total number of background and security checks, countries from whom DHS has 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 for Total number of aliens 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).

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In some instances, even if DHS is not the biometric services fee, and in employer’s name as listed in E-Verify on able to obtain travel documents for an accordance with the form instructions. their application for employment alien in one fiscal year, DHS is able to See proposed 8 CFR 274a.13(a)(3). DHS authorization. Id. An alien who fails to obtain such documents in a subsequent also proposes to require such aliens to establish that he or she is employed by fiscal year. DHS expects the number of submit the following additional an E-Verify employer at the time of aliens whose removal from the United documents: (1) A copy of a decision by filing or adjudication of the application States is impracticable because all an IJ or the BIA, or an administrative to renew his or her employment countries from whom DHS has removal order issued by DHS authorization is ineligible for an EAD. requested travel documents have demonstrating that the alien is subject to Furthermore, for both initial and affirmatively declined to issue such a final order of removal or deportation; renewal EAD applications, DHS will documents will remain very low. As (2) a completed Employment determine if the alien warrants a such, DHS has determined that it is not Authorization Worksheet (Form I– favorable exercise of discretion to grant contrary to the INA or the 765WS) to show economic necessity; 48 employment authorization. To this end, Administration’s enforcement priorities and (3) a copy of the current and aliens may include supporting to allow such aliens to work while they complete Order of Supervision (Form I– documentation of favorable factors as remain in the United States and until 220B), including a copy of the complete part of the EAD application. they can be removed. Personal Report Record which reflects For aliens whose removal from the compliance with the conditions for C. Biometric Submission and Criminal United States is impracticable, DHS is release. History proposing to make economic necessity, Given that ICE is the primary DHS Currently, all (c)(18) applicants which is currently only a discretionary component with jurisdiction over the receive an appointment notice from factor, a mandatory eligibility detention and removal of aliens with a USCIS to submit their biometrics so requirement, consistent with other final removal order, ICE will make the USCIS can use them for identity discretionary employment authorization appropriate determination as to whether verification and EAD production. DHS categories. See, e.g., 8 CFR the alien’s removal is impracticable at proposes to codify this biometric 274a.12(c)(14). As such, aliens who are the time of the alien’s initial temporary submission and associated biometric eligible to apply for employment release on an order of supervision and services fee for aliens seeking authorization based on the exception thereafter when the alien is required to discretionary employment authorization created in this proposed rule will need report to ICE consistent with the under the (c)(18) category. See proposed to demonstrate economic necessity for conditions of release. If ICE determines 8 CFR 241.4(j)(3). employment during the period they are all countries from whom DHS has In addition, DHS also proposes to use on an order of supervision. Aliens who requested travel documents have the (c)(18) applicant’s biometrics to are financially able to support affirmatively declined to issue such screen for criminal history. DHS has a themselves during the period prior to documents, ICE officers will annotate strong interest in ensuring public safety their removal from the United States the Form I–220B to indicate that the and preventing aliens with significant will not be eligible for an EAD. alien’s removal is currently criminal histories from obtaining a Furthermore, to protect U.S. workers impracticable because of the reasons discretionary benefit. As such, for aliens against potential displacement or any stated above. Aliens with final removal who fall within the exception provided disadvantages in the labor market, orders who are temporarily released on in this proposed rule and meet the including during the current economic an order of supervision and who are economic necessity requirement, DHS is recovery, DHS wants to ensure that U.S. seeking employment authorization proposing to consider a (c)(18) employers who hire aliens who are based on this exception would not be applicant’s criminal history in temporarily released on an order of eligible to apply for employment unless determining whether DHS will supervision are complying with our ICE has made such a determination and favorably exercise its discretion to grant immigration laws and not employing annotated the Form I–220B to indicate an employment authorization. Where unauthorized workers. For this reason, the alien’s removal is impracticable criminal history is a factor in the DHS is proposing to require aliens on an because of the reasons stated above. adjudication of an immigration benefit, order of supervision who are seeking a In addition to the above, DHS DHS typically conducts biometric-based renewal of their employment proposes to require aliens on orders of screening to independently identify and authorization be employed by a U.S. supervision who apply for initial verify criminal history in addition to employer who is a participant in good employment authorization after the reviewing any evidence submitted by standing in the E-Verify program. effective date of the final rule and who the applicant regarding his or her DHS proposes to limit the validity subsequently seek renewal of their criminal history.49 As such, DHS would period for employment authorization employment authorization to: (1) Show also use the (c)(18) applicant’s under 8 CFR 274a.12(c)(18), whether the that they meet the exception, (2) biometrics to screen against government alien seeks an initial or renewal EAD, to demonstrate economic necessity by databases (for example, FBI databases) a period not to exceed increments of one submitting a completed Employment to determine if he or she matched any year. Authorization Worksheet (Form I– criminal activity on file. USCIS will 765WS), and (3) show that they are continue to notify applicants of the B. USCIS Evidentiary Requirements employed by a U.S. employer who is a proper date, time, and location to DHS proposes to require aliens participant in good standing in E-Verify submit their biometrics after the temporarily released on orders of (renewals only) by providing their U.S. application for employment supervision who are eligible to apply for employer’s E-Verify Company authorization has been filed. employment authorization under the Identification Number and the Furthermore, DHS proposes to require new criteria and who are seeking initial a biometric services fee of $30 for (c)(18) employment authorization or a renewal 48 See also 8 CFR 274a.12(e) which provides that to submit an Application for the Federal Poverty Guidelines under Title 45 of the U.S. Code should be used as the criteria to establish 49 See ‘‘DHS/USCIS–018 Immigration Biometric Employment Authorization, (Form I– eligibility for employment authorization when and Background Check System of Records,’’ 83 FR 765) with the appropriate fee, including economic necessity is a factor. 36950 (July 31, 2018).

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EAD applicants. See proposed 8 CFR TABLE 8—FY 2014 THROUGH FY to have their employment authorization 106.2(a)(32(i)(C). DHS requires a 2018 CAT CASES GRANTED *— renewed only if: (1) DHS determines the biometric services fee of $30 to be Continued alien’s removal is impracticable because collected where the underlying all countries from whom DHS has immigration benefit fee does not capture CAT deferral requested travel documents have or incorporate biometric service Fiscal year of removal affirmatively declined to issue such costs.50 See 8 CFR 103.17 & documents, (2) the alien shows 106.2(a)(32)(i)(A), (B). DHS did not 5-Year Average ...... 147 economic necessity for employment, (3) require a biometric services fee for * U.S. Department of Justice, Executive Of- the alien is employed by a U.S. (c)(18) EAD applicants in the 2020 fice for Immigration Review, Statistical Year- employer who is a participant in good USCIS fee rule because this proposed books for FY 2014–FY 2018. standing in E-Verify (renewals only), rule and the USCIS fee rule were under Currently, aliens who are not going to and (4) the alien establishes that he or development simultaneously, yet be removed because they are granted she warrants a favorable exercise of independently of one another. See 84 withholding of removal based on discretion to obtain employment FR 62280–62371 (Nov. 14, 2019). section 241(b)(3) of the INA, 8 U.S.C. authorization. DHS is proposing in this Additionally, (c)(18) EAD applicants do 1231(b)(3), or the regulations rule that it will consider an E-Verify not have an underlying immigration implementing CAT are employment employer to be a participant in good benefit application or petition that they authorized based on the grant of standing if the employer: (1) Has must file into which associated withholding. See 8 CFR 274a.12(a)(10). enrolled in E-Verify with respect to all biometric submission and processing However, DHS’s regulations do not hiring sites in the United States that costs can be incorporated. Therefore, to clearly indicate the basis for employ an alien temporarily released on recover the cost of biometrics services withholding of removal (INA section an order of supervision who has for (c)(18) EAD applications, DHS must 241(b)(3) or CAT). DHS has determined received employment authorization require a biometrics fee for a (c)(18) that aliens who receive CAT deferral of under this rule as of the time of filing EAD applicant. Thus, DHS proposes to removal should also be included in the of the alien’s application for require a $30 biometric services fee with regulatory category governing employment authorization, (2) is in the Form I–765 for (c)(18) EAD employment authorization for aliens compliance with all requirements of the applicants. See proposed 8 CFR granted withholding of removal. Aliens E-Verify program, including but not 106.2(a)(32)(i)(C). granted deferral of removal will be limited to verifying the employment D. Aliens Granted Deferral of Removal employment authorized based on the eligibility of newly hired employees at Under the Regulations Implementing grant of deferral, until deferral is those hiring sites, and (3) continues to CAT terminated under applicable be a participant in good standing in E- regulations. DHS proposes to amend the Verify at any time during which the Once an alien has been granted regulations to make these clarifications. employer employs an alien temporarily withholding or deferral of removal, DHS released on an order of supervision who cannot remove the alien to the country E. Effective Date of the Final Rule has received employment authorization from which removal has been withheld With the exception of aliens whose under this rule. or deferred unless withholding or removal DHS has determined is deferral are terminated under applicable F. Additional Amendments impracticable because all countries from regulatory procedures set out in 8 CFR whom DHS has requested travel Finally, DHS is updating the 208.24, 1208.24, 208.17, 1208.17, or documents have affirmatively declined regulations at 8 CFR 241.4(j)(3), 1208.18(c). The average number of to issue such documents, DHS proposes 241.5(a), 241.5(c), and 241.13(h)(1) to aliens granted CAT deferral of removal to apply changes made by this rule only remove references to obsolete titles of over a 5-fiscal-year period was 147, and to initial and renewal applications officials of the former INS, to refer these numbers have not changed under 8 CFR 274a.12(c)(18) filed on or generally to ICE as the DHS component significantly over the last decade.51 As after the effective date of the final rule. with authority to issue orders of reflected in Table 8 below, the number DHS proposes to allow aliens supervision, to reflect USCIS as the of aliens granted CAT deferral from FY temporarily released on orders of agency that grants employment 2014 through FY 2018, remains low. supervision who are already authorization, and include appropriate employment authorized prior to the references. This proposed change gives TABLE 8—FY 2014 THROUGH FY final rule’s effective date to remain the Secretary and the Director of ICE the 2018 CAT CASES GRANTED * employment authorized until the flexibility to delegate authorities within expiration date on their EAD, unless the ICE to appropriate component heads, CAT deferral notwithstanding the particular titles that Fiscal year of removal card is revoked under 8 CFR 274a.14. USCIS would continue processing any may be assigned to a particular position 2014 ...... 121 pending application for a replacement in the future.52 See proposed 8 CFR 2015 ...... 121 EAD received before the effective date 2016 ...... 140 and receiving new applications for 52 After the functions of the former Immigration and Naturalization Service were transferred to the 2017 ...... 175 replacement EADs because those 2018 ...... 177 Secretary pursuant to the Homeland Security Act, adjudications are not considered a new Public Law 107–296, 441(c) (6 U.S.C. 251(2)), the grant of employment authorization but a functions were further delegated to component replacement of an EAD based on a heads. ICE now has primary authority over all 50 84 FR 62280, 62302–62303 (Nov. 14, 2019). enforcement actions and USCIS has authority over Explaining how USCIS calculated the biometric previously authorized period. adjudications of immigration benefits, including services fee of $30 that will be required for certain DHS further proposes to allow aliens issuance of employment authorization documents. forms for which it performs biometrics services. temporarily released on orders of See DHS Delegation No. 7030.2, ‘‘Delegation of 51 U.S. Department of Justice, Executive Office for supervision who are granted Authority to the Assistant Secretary for U.S. Immigration Review, Statistical Yearbooks, FY 2014 Immigration and Customs Enforcement,’’ (Nov. 13, through FY 2018 at https://www.justice.gov/eoir/ discretionary employment authorization 2004); DHS Delegation No. 0150.1, ‘‘Delegation to statistical-year-book. after the effective date of the final rule Continued

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241.4(j)(3), 241.5(a), 241.5(c), and E.O. 12866. Accordingly, OMB has DHS estimates that some aliens with 241.13(h)(1). Additionally, DHS is reviewed this proposed regulation. final removal orders and temporarily updating 8 CFR 241.5(a) to include a released on orders of supervision would 1. Summary cross-reference to 8 CFR 241.13(h). This be ineligible for discretionary EADs due cross reference will clarify that aliens This proposed rule is estimated to to this proposed rule. However, DHS temporarily released on an order of result in a reduction in the number of cannot estimate with precision what the supervision under 8 CFR 241.13(h) are aliens on orders of supervision who are future eligible population would be subject to the conditions of release eligible for employment authorization, because of data constraints and, provided in 8 CFR 241.5 and close the which could result in lost earnings for therefore, relies on a range with an loop with the concomitant reference to those no longer eligible. This loss of upper and lower bound. The estimated 8 CFR 241.5 contained within 8 CFR earnings would result in a transfer of costs of this proposed rule would range 241.13(h). See proposed 8 CFR 241.5(a). costs from the alien to their support from a minimum of about $94,868, DHS will update all of 8 CFR 241 in a network, including family members, associated with biometrics and added future rulemaking to remove additional community groups, non-profits or third- burdens for relevant filing forms to a references to obsolete INS titles party organizations to provide for the maximum of $1,496,016,941 consistent with the proposed change alien and any dependents. In addition, (annualized 7%) should no replacement made under section 8 CFR 241.5(a). DHS estimates increased filing burdens labor be found for aliens on orders of associated with the proposed rule for supervision who would be ineligible for VI. Statutory and Regulatory those who remain eligible for employment authorization under this Requirements employment authorization. Employers rule.53 The ten-year undiscounted costs A. Executive Orders 12866 (Regulatory that currently hire alien workers who would range from $940,239 to Planning and Review) and 13563 would no longer be eligible to renew $14,722,941,163. DHS estimates (Improving Regulation and Regulatory under this rule could experience new $228,789,887 (annualized 7%) as the Review) costs due to employee turnover or maximum decrease in employment tax complying with the proposed E-Verify transfers from companies and Executive Orders 12866 and 13563 requirement. Finally, the proposed rule employees to the Federal Government. direct agencies to assess the costs and may result in a loss of tax revenue. Table 9 provides a summary of the benefits of available regulatory Under the proposed rule, DHS proposed regulatory changes and the alternatives and, if a regulation is anticipates there would be six types of estimated impacts of the proposed rule. necessary, to select regulatory economic impacts that DHS can BILLING CODE 9111–97–P approaches that maximize net benefits estimate and quantify: (1) Potential lost (including potential economic, earnings for alien workers on orders of 53 DHS estimates some of the costs and benefits environmental, public health and safety supervision who may no longer be of this rule using the newly published U.S. Citizenship and Immigration Services Fee Schedule effects, distributive impacts, and eligible for employment authorization; and Changes to Certain Other Immigration Benefit equity). Executive Order 13563 (2) increased time burden for applicants Request Requirements, final rule (‘‘Fee Schedule emphasizes the importance of to submit forms; (3) added time and Final Rule’’), and associated form changes, as the quantifying both costs and benefits, of costs for applicants to submit baseline. 85 FR 46788 (Aug. 3, 2020). The Fee Schedule Final Rule was scheduled to go into effect reducing costs, of harmonizing rules, biometrics; (4) labor turnover costs that on October 2, 2020. On September 29, 2020, the and of promoting flexibility. This rule employers of alien workers on orders of U.S. District Court for the Northern District of has been designated as a ‘‘significant supervision could incur when their California issued a nationwide injunction, which regulatory action’’ that is economically employees’ EADs expire and are not prevents DHS from implementing the Fee Schedule renewed; (5) costs to employers to enroll Final Rule. See, Immigrant Legal Resource Center significant since it is estimated the v. Wolf, No. 4:20–cv–5883 (N.D. Cal. Sept. 29, proposed rule likely would have an in and maintain an E-Verify account as 2020). DHS intends to vigorously defend this annual effect on the economy of $100 a participant in good standing to retain lawsuit and is not changing the baseline for this million or more, under section 3(f)(1) of alien workers on orders of supervision rule as a result of the litigation. Should DHS not applying for renewal EADs; and (6) prevail in the Fee Schedule Final Rule litigation, this rule may reflect understated costs associated the Bureau of Citizenship and Immigration potential employment tax losses to the with biometrics fees and overstated benefits Services,’’ (June 5, 2003). Federal Government. associated with filing Form I–765.

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BILLING CODE 9111–97–C The two scenarios described above 1948).56 By comparison, the The impacts of reducing the number represent the estimated endpoints for unemployment rate for September 2019 of aliens temporarily released on orders the range of monetized impacts was 3.5%.57 DHS assumes that during of supervision that are eligible for EADs resulting from the provisions that affect the COVID–19 pandemic, with include both potential distributional employment eligibility for aliens additional available labor nationally, impacts (transfers) and costs. USCIS temporarily released on orders of companies are more likely to find uses the lost compensation to aliens supervision. There are other costs of the replacement labor for the job the alien temporarily released on orders of rule, including E-Verify, biometrics, on an order of supervision would have supervision that are no longer eligible labor turnover, and additional form filled.58 Thus, in the short-run during for EADs as a measure of the impact of burdens. These costs exist under both the pandemic and the ensuing economic this change—either as distributional scenarios described above, and thus recovery, the lost compensation to EAD impacts (transfers) from these aliens to $94,868 is the minimum cost of the rule applicants as a result of this rule is others or as a proxy for businesses’ cost (annualized 7%). likely to mean that the costs of the rule for lost productivity. If all companies DHS is aware that the outbreak of are able to easily find reasonable labor will be lower than they would otherwise COVID–19 will likely impact these have been. DHS notes that although the substitutes for the positions the aliens estimates in the short run.54 As temporarily released on orders of pandemic is widespread, the severity of discussed above, the analysis presents a its impacts varies by locality. supervision would have otherwise range of impacts, depending on if filled, DHS estimates a maximum of Consequently, it is not clear to what companies are able to find replacement extent the distribution of alien workers $1,495,358,741 (annualized at 7%) labor for the jobs alien workers temporarily released on orders of would be transferred from these workers temporarily released on orders of supervision overlaps with areas of the to others in the labor force (or induced supervision would have filled. In country that will be more or less back into the labor force). Under this September 2020, the unemployment rate scenario, there would be no federal was 7.9 percent.55 This is an impacted by the COVID–19 pandemic. employment tax losses. Conversely, if improvement on April’s 14.7 percent Accordingly, DHS cannot estimate with companies are unable to find reasonable which marked the highest rate and the labor substitutes for the position the largest over-the-month increase in the 56 In April 2020, the unemployment rate aliens temporarily released on orders of history of the series (seasonally adjusted increased by 10.3 percentage points to 14.7 percent. supervision would have filled then a Department of Labor, Bureau of Labor Statistics, data are available back to January The Employment Situation—April 2020. Available maximum of $1,495,358,741 at: https://www.bls.gov/news.release/archives/ (annualized 7%) is the estimated _ 54 On March 13, 2020, the President declared that empsit 05082020.pdf. monetized cost of this provision, and $0 the COVID–19 outbreak in the United States 57 Department of Labor, Bureau of Labor is the estimated monetized transfers constitutes a national emergency. See Statistics, The Employment Situation—September from these aliens to other workers. In ‘‘Proclamation on Declaring a National Emergency 2019, Employment Situation Summary Table A. addition, under this scenario where jobs Concerning the Novel Coronavirus Disease (COVID– Household data, seasonally adjusted. Available at: 19) Outbreak,’’ available at https:// https://www.bls.gov/news.release/archives/empsit_ would go unfilled, there would be a loss www.whitehouse.gov/presidential-actions/ 10042019.pdf. of employment taxes to the Federal proclamation-declaring-national-emergency- 58 The Congressional Budget Office estimates the Government. USCIS estimates concerning-novel-coronavirus-disease-covid-19- unemployment rate is expected to average close to $228,789,887 (annualized 7%) as the outbreak/. 14 percent during the second quarter, See: CBO’s 55 Department of Labor, Bureau of Labor Current Projections of Output, Employment, and maximum decrease in employment tax Statistics, The Employment Situation—September Interest Rates and a Preliminary Look at Federal transfers from companies and 2020. Available at: https://www.bls.gov/ Deficits for 2020 and 2021 https://www.cbo.gov/ employees to the Federal Government. news.release/archives/empsit_10022020.pdf. publication/56335 April 24, 2020.

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confidence to what extent the impacts reductions the pandemic will have on compensation are expected to be an will be transfers instead of costs. the ability of EAD holders to find jobs overestimate, especially in the short- DHS’s assumption that all applicants (as jobs are less available), or how DHS run. The range of impacts described by with an EAD are able to obtain would estimate such an impact with any the scenarios above, plus the employment (discussed in further detail precision given available data. consideration of the other costs, are later in the analysis), also does not Consequently, the ranges projected in summarized in Table 10. reflect impacts from the COVID–19 this analysis regarding lost BILLING CODE 9111–97–P pandemic. It is not clear what level of

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

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BILLING CODE 9111–97–C 2. Background and Purpose of the Zadvydas 61 which held that an alien The benefits potentially realized by Proposed Rule with a final order of removal cannot be the proposed rule are both qualitative kept in detention (unless special and quantitative. Under this proposed ICE works to remove aliens subject to a final order of removal from the United circumstances exist) once it has been rule, a U.S. worker may have a better determined that there is not a chance of obtaining jobs that some States promptly. Removal operations require integrated coordination, ‘‘significant likelihood of removal in the (c)(18) alien workers currently hold, as reasonably foreseeable future.’’ 62 The management, and facilitation efforts. the proposal would reduce employment Court established 6 months as the The removal of aliens subject to final authorization eligibility for this ‘‘presumptively reasonable period of orders of removal is a national security population of aliens who have been detention.’’ After the 6-month period, priority for the United States, ordered removed from the country. ‘‘once the alien provides good reason to highlighted by E.O. 13768, ‘‘Enhancing Second, the proposed rule may reduce believe there is no significant likelihood Public Safety in the Interior of the the incentive for aliens to remain in the of removal in the reasonably foreseeable United States’’ (Jan. 25, 2017). United States after receiving a final future, the Government must have By law, DHS is required to remove or order of removal, which could reduce sufficient evidence to rebut that release a detained alien ordered the amount of government resources showing.’’ 63 removed within a period of 90 days expended on enforcing removal orders Aliens with final orders of removal (‘‘removal period’’) after the issuance of for such aliens as well as monitoring who are released from ICE custody a final order of removal.59 and tracking aliens temporarily released Furthermore, under INA section 241(a)(3) are subject the law expressly prohibits DHS from on orders of supervision. Third, DHS to supervision.64 The supervision is clarifies that aliens granted CAT deferral releasing an alien during the removal of removal would no longer need to period if the alien was ordered removed 61 533 U.S. 678 (2001). submit Form I–765 in order to become based on criminal grounds and/or 62 Id. 60 employment authorized after the terrorist activities. 63 Id. at 701; see also 8 CFR 241.13(d). effective date of the final rule. DHS For aliens detained beyond the 64 INA sec. 241(a)(3). When releasing an alien estimates the total benefits for this removal period, DHS must comply with ordered removed on an order of supervision, ICE is the U.S. Supreme Court’s decision in not necessarily making a determination that all population would range from $0 to applicable foreign countries are refusing to accept $105,690 annually. Additional savings the alien. ICE’s efforts to repatriate are always could also be accrued in the form of 59 INA sec. 241(a)(1). The 90-day period is ongoing and even after an alien is temporarily opportunity costs of time if applicants extended if the alien fails or refuses to make timely released on an order of supervision the foreign application in good faith for travel or other government could very well comply with would have spent time submitting documents necessary to the alien’s departure or repatriation efforts which would allow ICE to evidence under any of the (c)(18) conspires or acts to prevent removal. immediately take the alien back into custody and considerations. 60 INA sec. 241(a)(2). remove the alien from the United States.

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effectuated through ICE Form I–220B, countries from whom DHS has and to codify the validity period of a Order of Supervision. Conditions for requested travel documents have (c)(18) EAD. See proposed 8 CFR release typically include regular check- affirmatively declined to issue a travel 274a.12(c)(18)(iii) and 274a.13(a)(3)(ii). ins with ICE, making good faith efforts document. Under the proposed rule, a renewal EAD to obtain travel documents and travel Further, DHS intends to require aliens would only be granted to those arrangements, not associating with who qualify under this exception to applicants eligible for an EAD under the gangs, criminals, or engaging in criminal establish an economic necessity for proposed exception and who establish activity, and participating in requisite employment during the period they are that they are employed by a U.S. rehabilitative treatment programs. on orders of supervision and expand the employer that is a participant in good DHS currently extends eligibility for current lists of factors it considers as a standing in DHS’s employment employment authorization to aliens, matter of discretion when adjudicating eligibility verification system (E-Verify) also known as the (c)(18) category, who an application for employment by providing their U.S. employer’s E- have been ordered removed and have authorization from aliens on orders of Verify Company Identification Number been temporarily released from custody supervision to include the alien’s and employer’s name as listed in E- under INA section 241(a)(3), 8 U.S.C. compliance with the conditions for Verify. Renewal applications for aliens 1231(a)(3), on an order of supervision. release, and the alien’s criminal history, who cannot establish that they are See 8 CFR 241.5(c), 274a.12(c)(18). In including but not limited to any employed by an E-Verify employer order for such aliens to obtain criminal arrests, charges, or convictions would be denied and fees would not be employment authorization, they must subsequent to the alien’s release on an returned. file a Form I–765 accompanied by order of supervision. required documentation and the proper Meanwhile, under proposed 8 CFR DHS proposes to apply changes made fee. Required documentation for Form 274a.12(a)(10), aliens who have received by this rule only to initial and renewal I–765 includes a copy of the order of a grant of CAT deferral of removal, as applications under 8 CFR 274a.12(c)(18) removal and the order of supervision. described in 8 CFR 208.17 and 1208.17, filed on or after the effective date of the USCIS would require aliens temporarily would be eligible for an EAD based final rule. DHS proposes to allow aliens released on an order of supervision to solely on the grant of deferral, similar to temporarily released on orders of submit biometrics and pay the aliens who are granted withholding of supervision who are already associated $85 fee as part of their initial removal based on INA 241(b)(3), 8 employment authorized prior to the or renewal EAD application. If USCIS U.S.C. 1231(b)(3), or the regulations final rule’s effective date to remain approves the alien’s Form I–765 under implementing CAT. Aliens who fall employment authorized until the the (c)(18) category, it is valid for 1 under the 8 CFR 274a.12(a)(10) are not expiration date on their EAD, unless the year,65 and USCIS mails an EAD subject to requirements to apply to DHS card is revoked under 8 CFR 274a.14. according to the mailing preferences to obtain employment authorization USCIS would continue processing any indicated by the applicant. To renew an before they can begin work. However, pending application for a replacement alien’s employment authorization under the alien is required to apply (i.e., EAD received before the effective date the (c)(18) category, an alien must file submit Form I–765) in order to receive and receiving new applications for Form I–765, accompanied by required a physical EAD if they want a document replacement EADs because such documentation, biometrics and the evidencing their employment adjudications are not considered a new proper fees, to demonstrate that they authorization pursuant to their grant of grant of employment authorization but a remain on an order of supervision and withholding or deferral. Currently, replacement of an EAD based on a continue to comply with it. USCIS may, aliens granted CAT deferral of removal previously authorized period. at discretion, deny an application are required to apply for an EAD under regardless of eligibility. If USCIS denies the (c)(18) category. Upon the effective 3. Population the Form I–765 application, the agency date of the final rule, these aliens would The populations that could be sends a written notice to the applicant no longer be required to meet the affected by this proposed rule consist of explaining the basis for denial. requirements of the (c)(18) category or As explained in detail in the pay the initial $410 application fee for work-authorized aliens who have final preamble, DHS has determined that employment authorization since they orders of removal but who are employment authorization should be would be able to apply for an EAD temporarily released from custody on an limited to a subset of aliens ordered under the (a)(10) category, which is fee order of supervision and aliens granted removed and temporarily released on exempt for initial applicants. However, CAT deferral of removal. DHS estimates orders of supervision to better align if these aliens want a physical EAD card the affected population based on with the DHS enforcement mission and as evidence of their employment historical data for FY 2010 to FY 2019. the Administration’s current authorization they would need to Eligibility for Employment immigration enforcement priorities, submit Form I–765. Authorization for Aliens on Orders of including those outlined in E.O. 13768, Additionally, USCIS proposes to Supervision and efforts to strengthen protections of amend regulations at 8 CFR U.S. workers. Therefore, DHS proposes 274a.12(c)(18) and 274a.13(a) to require Table 12 shows the annual receipts to amend 8 CFR 274a.12(c)(18) to renewal applicants be employed by an and approvals for initial and renewal eliminate eligibility for employment E-Verify employer, to clarify the applications of employment authorization for aliens temporarily application and evidentiary authorization for aliens temporarily released on orders of supervision unless requirements for such aliens seeking released on an order of supervision DHS has determined that the alien’s initial and renewal employment using Form I–765 for FY 2010 to FY removal is impracticable because all authorization under the (c)(18) category, 2019.66

65 All initial and renewal EADs issued under the 66 This data was provided by the USCIS Office of filings and pending counts are not presented (c)(18) category are currently valid for one year Performance and Quality (OPQ) and can be found because they would not be impacted by the upon issuance. Replacement EAD cards are issued online at https://www.uscis.gov/sites/default/files/ proposed rule and are thus immaterial to the _ _ _ for the same dates as the previous card which document/data/I-765 Application for analysis. would have had a validity period of one year. Employment_FY03-19.pdf. Note that replacement

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

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 Additionally, the declining growth rates move in line with receipts. Over the 10- receipts, DHS also considered the 5- and for initial receipts would, at some point, year period from FY 2010 to FY 2019, 10-year annual percentage growth rates. result in either a plateau or a decrease the average initial approval rate was Table 13 shows the 5-year annual for renewal receipts. Therefore, we do approximately 84 percent of initial percentage growth rate in the number of not find it reasonable to use the 10-year receipts and the average renewal renewal receipts is ¥3.3 percent and annual percentage growth rate of 7.5 approval rate was approximately 93 the 10-year annual percentage growth percent to project renewal receipts. percent of renewal receipts.71 rate is 7.5 percent.69 Similar to the Therefore, this analysis uses the 5-year To project FY 2020 initial receipts, growth rates for the initial receipts, annual percentage growth rate of ¥3.3 the 10-year annual percentage growth renewal receipts have a negative annual percent to project a decline in the rate of ¥1.2 percent (Table 13) is percentage growth rates over the 5-year number of renewal receipts. multiplied by the number of initial period. In order to estimate initial and receipts from FY 2019, 5,697 (Table 12), To project renewal receipts going renewal approvals, DHS recognizes that which equals ¥68 (rounded). forward, DHS acknowledges that aliens approvals have generally moved in line Subtracting 68 from 5,697 equals 5,629 temporarily released on orders of with receipts.70 DHS recognizes that the (Table 14). The FY 2020 initial supervision have removal orders and are number of approvals could occasionally approvals are calculated by multiplying continually being deported from the differ from or lag receipts, but over time the 10-year average initial approval rate United States on an ongoing basis. we would expect approvals to mostly of 84 percent by the estimated number

67 Calculation: (((FY 2019 Initial Receipts 5,697/ (((FY 2019 Renewal Receipts 19,306/FY 2010 71 Calculations: ∧ ¥ FY 2010 Initial Receipts 6,420) (1/10)) 1) * 100 Renewal Receipts 9,328) ∧ (1/10))¥1) * 100 = 7.5 (6,398 (initial approvals 10-year average)/7,615 ¥ = 1.2 percent. percent. (initial receipts 10-year average)) × 100 = 84 percent 68 Calculation: (((FY 2019 Initial Receipts 5,697/ 70 Exceptions for initials include FY 2013 when (rounded). FY 2015 Initial Receipts 9,628) ∧ (1⁄5))¥1) * 100 = initial approvals declined while initial receipts (17,483 (renewal approvals 10-year average)/ ¥10.0 percent. increased; exceptions for renewals include FY 2017 18,786 (renewal receipts 10-year average)) × 100 = 69 Calculations: when renewal receipts increased slightly while (((FY 2019 Renewal Receipts 19,306/FY 2015 renewal approvals declined and FY 2019 when the 93 percent (rounded). Renewal Receipts 22,801) ∧ (1⁄5))¥1) * 100 = ¥3.3 number of renewal approvals exceeded the number percent. of renewal receipts received.

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

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 TABLE 15—ALIENS RELEASED FROM discretionary analysis is case specific the eligibility for employment ICE CUSTODY, UNABLE TO OBTAIN and typically assessed after an officer authorization for aliens temporarily TRAVEL DOCUMENTS, FY 2015 TO has determined that the alien meets all released on orders of supervision with FY 2019 applicable threshold eligibility one exception. The exception is for requirements. It involves the review of aliens for whom DHS has determined Fiscal year Total all relevant, specific facts and removal is impracticable because all circumstances in an individual case and countries from which DHS has 2015 ...... 369 weighing all the positive factors present 2016 ...... 411 requested travel documents have 2017 ...... 324 in a particular case against any negative affirmatively declined to issue such 2018 ...... 530 factors in the totality of the record. documents. In order to estimate the 2019 ...... 659 Further, DHS does not know the number number of aliens whose removal is of excepted aliens that would be denied impracticable for the reason stated, 5-year Average ...... 459 as a matter of discretion because of USCIS obtained data from ICE on the Source: DHS–ICE ERO, LESA Statistical subsequent criminal convictions. For number of aliens released from custody Tracking Unit. these reasons, we cannot estimate how who have been unable to obtain travel As noted in the preamble, DHS is many aliens would be denied as a documents over the last 5 fiscal years. proposing to consider the alien’s matter of discretion based on criminal Table 15 shows the number of aliens criminal history, including but not history. temporarily released on orders of limited to criminal activities subsequent Aliens Granted CAT Deferral of supervision denied a travel document in to his or her release on an order of Removal the corresponding fiscal year. DHS supervision in determining whether the estimates this proposed rule would alien warrants DHS’s favorable exercise DHS also proposes to revise the result in fewer aliens temporarily of discretion to obtain an EAD. While (a)(10) employment authorization released on orders of supervision who there are aliens with an order of category to include aliens who are are eligible for employment supervision who are known convicted granted CAT deferral of removal as authorization and would result in a criminals, DHS is unable to precisely employment authorized based solely on maximum of 459 aliens remaining estimate the number of aliens that could the grant of deferral. Table 16 shows the potentially be denied an EAD as a eligible for an employment number of CAT cases granted deferral of matter of discretion should this authorization under the exception. removal for FY 2014 to FY 2018.75 Since proposed rule be promulgated as a final rule. DHS is proposing to expressly FY 2015, the number of CAT cases consider the alien’s criminal history as granted deferral of removal has trended a factor in determining whether the upward reaching a high of 177 cases in alien warrants a favorable exercise of FY 2018. The 5-year average number of discretion in granting an EAD. The cases is approximately 147.

72 Calculation: 5,629 (FY 2020 estimated initial 74 Calculation: 18,669 (FY 2020 estimated FY 2018 data. The analysis will be updated with FY receipts) × 84 percent = 4,728 estimated FY 2020 renewal receipts) × 93 percent = 17,362 estimated 2019 when it becomes available. initial approvals. FY 2020 renewal approvals. 73 × Calculation: FY 2019 renewal receipts 19,306 75 The Department of Justice Statistics Yearbook 5-year annual percentage growth rate ¥0.033 = website was last updated on August 30, 2019 with ¥637.

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TABLE 16—CASES GRANTED CAT DE- annually. DHS recognizes this upper deferral of removal, both of which have FERRAL OF REMOVAL, FY 2014–FY bound estimate does not take into experienced periods of stability and 2018 account the number of aliens who growth over their respective five-year would no longer be eligible due to periods of analysis (Tables 15 and 16). Fiscal year Cases subsequent convictions. DHS also does For this analysis, DHS relies on the five- not know how many of these aliens year averages for these populations as 2014 ...... 121 would be eligible or ineligible under the there are various factors outside of this 2015 ...... 121 economic necessity requirement or the rulemaking may result in a decline or 2016 ...... 140 2017 ...... 175 number that would apply for or be rise of in the number of aliens identified 2018 ...... 177 denied for other considerations, such as as unable to obtain travel documents or the alien’s compliance with their order granted CAT deferral of removal. 5-year average ...... 147 of supervision conditions, and the However, DHS cannot predict with alien’s criminal history, including but Source: Department of Justice Statistics certainty at this time if the trend in the Yearbook, https://www.justice.gov/eoir/statis- not limited to any criminal arrests, size of these populations would tical-year-book. charges, or convictions subsequent to increase, decrease, or remain stable. The population of aliens who have the alien’s release from custody on an Therefore, DHS uses the respective 5- been granted deferral of removal based order of supervision. DHS recognizes year averages for this analysis. on the regulations implementing CAT that if any of the 459 potential approvals DHS estimates that the lower bound are currently regulated to apply for who may fall under the exception do share of initial EADs under the baseline employment authorization under the not apply for work authorization or are that would continue to be eligible for denied employment authorization that (c)(18) category. Currently, USCIS does renewal under this proposed rule ranges the upper bound of 606 would be an not have a breakout for the number of from 3.1 percent in FY 2020 to 3.5 overestimate. Thus, we use an upper aliens who have been granted CAT percent in FY 2029 (Table 17(A) column bound estimate of 606 assuming 100 deferral of removal who have applied or C).76 Under the assumption that the percent of aliens temporarily released been approved for an initial or renewal same share of initial approvals would be on orders of supervision who have been EAD. Under the proposed rule, this eligible as renewals, we multiply the unable to obtain travel documents population would be employment renewal receipt and approval would remain employment eligible authorized based solely on such a grant populations by these percentages to under this rule, because choosing any and would only need to apply for the obtain the corresponding lower bound physical EAD card under the (a)(10) other upper bound would be speculative (Table 17(B) column A). We use a lower renewal EAD estimates for each fiscal category if they want a document year (Table 17(A) columns E and G). evidencing their employment bound estimate of 147 (Table 17(A) column A) since all aliens who are Further, the upper bound is also authorization pursuant to the grant of estimated assuming that the same share deferral of removal. granted CAT deferral of removal would continue to be employment authorized. of initial approvals would be eligible as Estimated Eligible Employment These upper and lower bound initial renewals. Table 17(B) repeats the Authorizations receipts estimates are applied, estimates for the upper bound Based on the exception (459) and the unchanged, into the future. Although populations for initials and renewals. grant of CAT deferral of removal initial receipts overall have been BILLING CODE 9111–97–P exception (147), DHS estimates an declining (Table 12), the upper and upper bound estimate for initial (c)(18) lower bounds depend on the average 76 Calculations: For example, for FY2020—(147 EAD approvals that would remain estimated lower bound/4,728 projected number of number of aliens released from ICE initial approvals) × 100 = 3.1 percent (rounded). 147 eligible for employment authorization custody who are unable to obtain travel estimated upper bound/4,241 projected number of under this rule in the future is 606 documents and aliens granted CAT initial approvals) × 100 = 3.5 percent (rounded).

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

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Renewal Applicants for Employment enroll in E-Verify to retain their (c)(18) others or as a proxy for businesses’ cost Authorization—E-Verify renewal alien employees or the overall for lost productivity. Companies may incur opportunity DHS proposes to allow aliens on number of employees for whom these costs by having to choose the next best orders of supervision who are granted entities would create an E-Verify case, alternative to filling a job an alien employment authorization after the should they enroll. DHS is also unable temporarily released on orders of effective date of the final rule to have to determine the number of employers supervision would have filled. DHS is their employment authorization whose (c)(18) alien employees would unable to determine what an employer’s renewed only if they meet the exception remain employment eligible as a result next best alternative may be for those and they establish that they are of this proposed rule. DHS welcomes companies. As a result, DHS does not employed by a U.S. employer who is a public comment or data on employers know the portion of overall impacts of participant in good standing in DHS’s who enroll in the E-Verify program to retain (c)(18) alien renewal employees this rule that are transfers or costs. If employment eligibility verification companies can find replacement labor system (E-Verify) by providing their as well as the overall number of employees for whom employers would for the positions the aliens temporarily U.S. employer’s E-Verify Company released on orders of supervision would Identification Number and the create E-Verify cases, should they enroll employees. DHS notes that this have filled, removing EAD eligibility for employer’s name as listed in E-Verify. these aliens would result in primarily Since this rule proposes to eliminate provision may act as a barrier to a distributional effects in the form of eligibility for employment authorization company hiring or continuing to employ transfers from aliens temporarily for aliens temporarily released on orders a (c)(18) employment authorized alien released on orders of supervision to of supervision, the impact on the should the company make the choice to others that are currently in the U.S. renewal population would depend on not enroll in E-Verify. Such barriers labor force (or workers induced to which aliens remain eligible and if the contribute to the cost calculation of this return to the labor market), possibly in alien’s employer already participates in rule by increasing the potential for the form of additional work hours or E-Verify or would be willing to enroll turnover costs incurred by U.S. overtime pay. DHS acknowledges that and participate in E-Verify if the businesses—even in situations where a there may be additional opportunity employer is not enrolled. Because of the (c)(18) employee remains employment costs to employers such as additional uncertainty regarding eligibility, DHS is authorized. costs associated with searching for new unable to estimate a range for the 4. Transfers, Costs and Benefits of the employees. If companies cannot find renewal population that would be Proposed Rule reasonable substitutes for the labor the impacted by this provision and aliens temporarily released on orders of attempting to do so would be Transfers and Costs supervision would have provided, speculative. However, DHS This section presents the costs and removing EAD eligibility for these aliens acknowledges there would be renewal benefits associated with the proposed would primarily result in costs to those applicants who would be impacted by rule. The impacts of the proposed companies through lost productivity this provision. provisions are estimated in comparison and profits. with a baseline that assumes no Employer Population DHS has no information on wages or proposed action will be implemented. occupations of alien workers DHS recognizes that this proposed temporarily released on orders of rule would impact employers who Proposal Regarding EAD Eligibility supervision, at the initial or renewal currently, or will in the future, employ DHS anticipates that revising stage, since these alien workers obtain (c)(18) alien workers. However, DHS eligibility and introducing new an open-market EAD that does not cannot precisely estimate the number of evidentiary requirements for (c)(18) include or require any data on their employers that could incur costs EADs could have several impacts, employment. because (c)(18) employment including potential lost earnings to alien The federal minimum wage is authorization is considered to be ‘‘open workers temporarily released on an currently $7.25.77 The use of the federal market,’’ where alien workers are not order of supervision after receiving a minimum wage is grounded in the tied to a specific employer. Such final order of removal, the cost notion that most of the relevant EAD employment also does not require a associated with an increase of a 30 holders would not have been in the Labor Condition Application (LCA) or a minute time burden to complete Form labor force long and would thus not be Temporary Labor Certification (TLC) I–765, as well as the costs of filing an expected to earn relatively high wages. from the U.S. Department of Labor additional form (Form I–765WS) and However, in this proposed rulemaking, (DOL), or other employer data at any submitting biometrics. we rely on the ‘‘effective’’ minimum point in the EAD process (initial, The proposed rule is estimated to wage of $11.80. As is reported by The renewal, or replacement stage). DHS result in a reduction in the number of New York Times ‘‘[t]wenty-nine states recognizes that many factors influence aliens temporarily released from and the District of Columbia have state- whether an employer participates in the custody on an order of supervision that level minimum hourly wages higher E-Verify program. While E-Verify is a are eligible for EADs. The impacts of than the federal [minimum wage],’’ as free, voluntary program, some reducing the number of aliens do many city and county governments. employers are required to enroll in the temporarily released on orders of This analysis in The New York Times program as a condition of federal supervision that are eligible for EADs estimates that ‘‘the effective minimum contracting, or as a requirement of state include both potential distributional impacts (transfers) and costs. USCIS legislation or other applicable laws. 77 See 29 U.S.C. 206—Minimum wage, available However, DHS cannot predict the uses lost compensation to aliens at https://www.gpo.gov/fdsys/pkg/USCODE-2011- number of employers who would use E- temporarily released on an order of title29/html/USCODE-2011-title29-chap8- Verify or how many would experience supervision that are no longer eligible sec206.htm (accessed May 19, 2020). See also U.S. for EADs as a measure of the impact of Department of Labor, Wage and Hour Division. The labor turnover due to this proposed rule. minimum wage in effect as of May 19, 2020. Further, DHS does not know the number this change—either as distributional Available at https://www.dol.gov/general/topic/ of employers that would choose to impacts (transfers) from these aliens to wages/minimumwage.

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wage in the United States . . . [was] DHS does not rule out the possibility effective minimum hourly wage rate of $11.80 an hour in 2019.’’ 78 DHS that some portion of the population $17.23 and the average hourly wage rate accounts for worker benefits by might earn the average wage for all across all occupations of $37.55 by calculating a benefits-to-wage multiplier occupations, but without empirical 2,080 hours, the typical annual number using the most recent DOL, Bureau of information, DHS believes that of work hours, to estimate the annual Labor Statistics (BLS) report detailing including a range with the lower bound earnings of $35,838 and $78,106, the average employer costs for employee relying on the effective minimum wage respectively, for each applicant.83 Table compensation for all civilian workers in is justifiable. Therefore, this analysis 18 shows the two population ranges for major occupational groups and uses both the effective minimum hourly initial and renewal approvals for the industries. DHS estimates the benefits- wage rate of $11.80 to estimate a lower two ranges of wage estimates for aliens to-wage multiplier is 1.46 and, bound and an average wage rate for all temporarily released on orders of therefore, is able to estimate the full occupations of $25.72 as an upper supervision and the corresponding opportunity cost per applicant, bound in consideration of the variance potential lost earnings. Table 18(A) including employee wages and salaries in average wages across states.81 shows cost estimates for the lower and and the full cost of benefits such as paid Therefore, DHS calculates the average upper bound range of initial EAD 79 leave, insurance, and retirement, etc. total rate of compensation for all approvals based on the lower bound Although the federal minimum wage occupations as $37.55 per hour, where wage annual earnings of $35,838. The could be considered a lower bound the mean hourly wage is $25.72 per total earnings for each population under income for the population of interest, hour worked and average benefits are the rule based on the projections DHS calculates the total rate of $11.83 per hour.82 All of the quantified developed in the ‘‘Population’’ section compensation for the effective estimates of costs and transfer payments are reported in Columns B, D and F. minimum hourly wage is $17.23, which in this analysis incorporate lower and Columns G and H present the potential is 62.7 percent higher than the federal upper bound ranges based on the lost earnings, by subtracting, from the minimum wage.80 effective minimum hourly wage and the current baseline (column F), the average hourly wage across all potential earnings from rule populations 78 ‘‘Americans Are Seeing Highest Minimum occupations. Wage in History (Without Federal Help)’’ Ernie (columns B and D). Similarly, Table Tedeschi, The New York Times, April 24, 2019. Estimated impacts in this analysis 18(B) repeats the estimates for the lower Accessed at https://www.nytimes.com/2019/04/24/ include lost potential earnings to and upper bound range of initial EAD upshot/why-america-may-already-have-its-highest- applicants. Since the current validity approvals based on the upper bound minimum-wage.html (last visited August 21, 2020). period of a (c)(18) EAD is up to one 79 The benefits-to-wage multiplier is calculated as (average) wage annual earnings of follows: (Total Employee Compensation per hour)/ year, DHS multiplied the total rate of $78,106. Tables 18(C) and 18(D) repeat (Wages and Salaries per hour) = $37.10/$25.47 = compensation using the average the estimates from Table 18(A) and 1.458 = 1.46 (rounded). See Economic News Release, Employer Cost for Employee Compensation 18(B) for the lower and upper bound (March 2020), U.S. Dept. of Labor, BLS, Table 1. wage = 0.627, which rounded and multiplied by ranges of renewal EAD approvals based Employer costs per hour worked for employee 100 = 62.7 percent. on the lower and upper bound wage compensation and costs as a percent of total 81 The average wage for all occupations is found compensation: Civilian workers, by major Department of Labor, Bureau of Labor Statistics, annual earnings, respectively. occupational and industry group. March 19, 2020, May 2019 National Occupational Employment and available at https://www.bls.gov/news.release/ Wage Estimates. The data is found at: https:// 83 Calculations: 2,080 typical annual work hours _ archives/ecec_03192020.pdf (last visited March 24, www.bls.gov/oes/2019/may/oes nat.htm#00-0000 × $17.23 the total rate of compensation using the 2020). (last visited March 19, 2020). average state minimum wage = $35,838 (rounded). 82 80 Calculations (1) for effective minimum wage: The calculation of the weighted mean hourly 2,080 typical annual work hours × $37.55 the total × × $11.80 hourly wage benefits burden of 1.46 = wage for applicants: $25.72 per hour 1.46 = rate of compensation using the average wage = $17.23; (2) (($17.23 wage¥$10.59 wage)/$10.59)) $37.5512 = $37.55 (rounded) per hour. $78,106 (rounded).

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BILLING CODE 9111–97–P

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BILLING CODE 9111–97–C who remain eligible for an EAD and $614,037,170 to $ 1,495,358,741 (Table DHS uses the lost compensation to continue to work, as well as their wage 22).85 aliens temporarily released on orders of rate. Over the 10-year period from FY supervision as a measure of the overall 2020 to FY 2029, the total lost earnings 85 An important assumption relied upon in this impact of removing eligibility for a would range from $6,038,201,268 to analysis is that each holder of an approved EAD has (c)(18) EAD—either as distributional $14,716,520,096.84 Annualized at 7 entered the labor force and is working (when the rule becomes effective). DHS relies on this impacts (transfers) or as a proxy for percent, lost earnings for initial and businesses’ cost for lost productivity. It assumption on the grounds that individuals would renewal EAD holders would range from not have expended the direct filing and time-related does not include additional costs to opportunity costs of applying for an EAD if they did businesses for lost profits and 84 Calculations: $1,388,614,986 (10-year total not intend to recoup an economic benefit from opportunity costs or the distributional initial upper bound costs) + $4,649,586,282 (10-year doing so. In reality, some EAD holders may not be impacts for those in an applicant’s total renewal upper bound costs) = $6,038,201,268 employed for any number of reasons—including support network. As shown in Table 18, (minimum 10-year total lower bound costs); normal labor market frictions—that have nothing to $3,384,879,722 (10-year total initial upper bound do with this rule. In addition, DHS has received the potential lost earnings depend on costs) + $11,331,540,374 (10-year total renewal information that some individuals seek an EAD for the number of aliens released upper bound costs) = $14,716,420,096 (maximum purposes of paper documentation and may not temporarily on orders of supervision 10-year total upper bound costs). intend to work.

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EAD holders who would no longer be Costs to Applicants To Submit would spend 1 hour and 10 minutes eligible to renew their employment Biometrics (1.17 hours) at an ASC to submit biometrics, summing the ASC time and authorization under the proposed This rule proposes to codify a travel time yields 3.67 hours.90 At the eligibility criteria in this rule would biometrics requirement for aliens who lower and upper wage bounds, the incur lost earnings. Additionally, DHS file for an EAD under the (c)(18) opportunity costs of time to submit acknowledges the potential for category. Currently, all (c)(18) biometrics services are $63.23 and additional lost compensation to renewal applicants receive an appointment $137.81.91 The travel cost is $29, which applicants if their employers are not notice from USCIS to submit their is the per mileage reimbursement rate of currently enrolled in E-Verify and opt biometrics 86 at an Application Support $0.58 multiplied by 50-mile travel not to enroll in the E-Verify program. In Center (ASC) to, among other things, distance. Summing the time-related and such cases, renewal applicants could assist in identity verification and travel costs generates a per person lose earnings if they are unable to find facilitate (c)(18) EAD card production. biometrics submission cost of $92.23 at employment with an employer who They are also required to pay the $85 the lower bound wage and $166.81 at participates in E-Verify. biometric services fee.87 This rule the upper bound wage.92 Combining DHS recognizes that, excluding the would codify the requirement for aliens these costs with the biometric services effects of inflation, earnings generally to submit biometrics and pay the fee totals a per person biometrics rise over time and the earnings of EAD proposed $30 biometric services fee. submission cost of $122.23 and $196.81 holders could be larger in the future The biometrics requirement would at the respective lower and upper wage than estimated in this analysis. apply to (c)(18) Form I–765 filers, for rates.93 Moreover, since EAD renewals, by both initial and renewal EAD Table 19 shows the two population necessity of order, follow in time after applications. In addition, DHS proposes ranges for initial and renewal receipts an initial EAD approval, wages and, to use the biometrics submitted by for the two ranges of wage estimates for hence, total compensation, earned could (c)(18) EAD applicants to screen for aliens on orders of supervision and the be higher for renewals. Accordingly, criminal history. corresponding total cost to submit this effect could bias the estimate of The submission of biometrics requires biometrics. Table 19(A) shows cost earnings losses downward. However, we that aliens travel to an ASC for the estimates for the lower and upper bound see no tractable way at present to biometric services appointment. In past range of initial EAD receipts at the incorporate this possibility into the rulemakings, DHS estimated that the lower bound submission cost of quantified estimates. average round-trip distance to an ASC is $122.23. The total costs for Columns C 50 miles, and that the average travel DHS welcomes public comments and and E provide the range of time for the trip is 2.5 hours.88 The cost data concerning the appropriateness of undiscounted costs for the lower bound. of travel also includes a mileage charge using the effective minimum wage rate Similarly, Table 19(B) repeats the based on the estimated 50 mile round as a lower bound and the average wage estimates for the lower and upper bound trip at the 2020 General Services rate as an upper bound for (c)(18) range of initial EAD receipts based on Administration (GSA) rate of $0.58 per workers and the resulting impacts the upper bound submission cost of mile.89 Because an individual alien presented. $196.81. Tables 19(C) and 19(D) repeat these estimates for the lower and upper In addition to the above quantified 86 At present, biometrics collection generally impacts, there could be qualitative refers to the collection of fingerprints, photographs, bound ranges of renewal EAD receipts impacts for aliens on orders of and signatures. See https://www.uscis.gov/forms/ based on the lower and upper bound supervision who would no longer be forms-information/preparing-your-biometric- submission costs, respectively. services-appointment (describing biometrics as BILLING CODE 9111–97–P eligible for employment authorization. including fingerprints, photographs, and digital For the (c)(18) population that will not signature) (last visited May 15, 2020). be able to renew their EAD or obtain an 87 USCIS was previously authorized to collect an owned-vehicle-pov-mileage-reimbursement-rates initial EAD, there would likely be an $85 biometric services fee. However, the recently (last visited May 7, 2020). promulgated fee rule incorporated the biometric 90 Source for biometric time burden estimate: impact in terms of lost income which services costs into the underlying immigration Paperwork Reduction Act (PRA) Supporting could pose economic hardships. benefit request fees for which biometric services are Statement for Form I–485 (OMB control number Members of this population may need to applicable in the recent fee rule and maintained a 1615–0023). The PRA Supporting Statement can be rely on their support networks for separate $30 biometric services fees for certain found at Question 12 on Reginfo.gov at https:// benefit requests. See DHS, U.S. Citizenship and www.reginfo.gov/public/do/ financial and social assistance, which Immigration Services Fee Schedule and Changes to PRAViewDocument?ref_nbr=201706-1615-001. could involve, but may not be limited Certain Other Immigration Benefit Request 91 Calculations: 3.67 (total time in hours to submit to, family members and friends, Requirements, 85 FR 46788 (Aug. 3, 2020) (Fee biometrics) × $12.05 (prevailing wage for 1 hour of religious and charitable organizations, Rule). work) = $44.22; 3.67 (total time in hours to submit × private non-profit providers, state and 88 See ‘‘Employment Authorization for Certain H– biometrics) $37.55 (average wage for 1 hour of 4 Dependent Spouses; Final rule,’’ 80 FR 10284 (25 work) = $137.81. local governments, and NGOs. DHS Feb. 2015); and ‘‘Provisional and Unlawful 92 Calculations: $29 (cost of travel) + $63.23 (time- believes that the immediate indirect Presence Waivers of Inadmissibility for Certain related costs at lower bound wage) = $92.23; $29 impact of this rule to an applicant’s Immediate Relatives; Final Rule,’’ 78 FR 536, 572 (cost of travel) + $137.81 (time-related costs at support network is likely not (3 Jan. 2013). upper bound wage) = $166.81. 89 The General Services Administration mileage 93 Calculations: $92.23 (total time-related cost at significantly more than the wages and rate of $0.58, effective January 1, 2020, available at: lower bound wage) + $30 (biometrics fee) = benefits the applicant would have https://www.gsa.gov/travel/plan-book/ $122.23; $166.81 total (time-related costs at upper earned without this rule. transportation-airfare-rates-pov-rates/privately- bound wage) + $30 (biometrics fee) = $196.81.

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BILLING CODE 9111–97–C $5,476,238.94 Annualized at 7 percent, would range from $83,148 to $552,741 As shown in Table 19, the cost to the estimated costs to submit biometrics (Table 22). submit biometrics depends on the Cost of Forms number of aliens temporarily released 94 Calculations: $179,678 (10-year total initial on orders of supervision who apply for lower bound costs) + $644,397 (10-year total For those aliens who remain eligible an EAD and their wage rate. Over the renewal lower bound costs) = $824,075 (minimum to be employment authorized, the 10-year total lower bound costs); $1,192,669 (10- proposed rule would increase the time 10-year period from FY 2020 to FY year total initial upper bound costs) + $4,283,570 2029, the total cost to submit biometrics (10-year total renewal upper bound costs) = burden on the population of applicants would range from $824,075 to $5,476,238 (maximum 10-year total upper bound applying for employment authorization. costs). This rule also proposes to add filing

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procedures and evidentiary wage and by about $18.78 based on the for all occupations.99 Combining the requirements for aliens on orders of average wage for all occupations.97 new costs of the I–765 and I–765WS, the supervision who are seeking an initial This proposed rule would also make total per person increased time burden EAD or renewing an EAD. The proposed it a requirement to submit Form I– would add costs of $17.23 and $37.55 at new requirements include submitting a 765WS for aliens applying for the respective lower and upper bound Form I–765WS, to establish the alien’s employment authorization under the wage rates. economic necessity for employment (c)(18) category. Currently, proving the Table 20 shows the additional filing and, for renewal applicants only, the existence of economic necessity to be time burden-costs for Forms I–765 and name of the alien’s U.S. employer as employed is listed as a discretionary I–765WS for the two population ranges listed in E-Verify and that employer’s E- factor for consideration, but it is not a for initial and renewal receipts. Table Verify Company Identification Number. requirement. In this proposed rule, DHS 20(A) shows cost estimates for the lower now makes this a mandatory and upper bound range of initial EAD Currently, DHS estimates the time requirement. DHS estimates the current burden for completing Form I–765 is 4 receipts based on the lower bound time burden for completing Form I– additional time burden cost of $12.05. hours and 30 minutes (4.5 hours).95 For 98 765WS is 30 minutes (0.5 hours). For The total costs for Columns C and E aliens on orders of supervision who aliens temporarily released on orders of continue to be eligible and apply for provide the range of undiscounted costs supervision who continue to be eligible for the lower bound wage. Similarly, employment authorization after this rule and apply for employment authorization is final, this proposed rule would Table 20(B) repeats the estimates for the after the rule is final, the proposed rule lower and upper bound range of initial increase the time burden of Form I–765 would increase the opportunity cost of EAD receipts based on the upper bound by 30 minutes (0.5 hours) for a total of time for each applicant by $8.62 based additional time burden cost of $37.55. 5 hours.96 This change would increase on the effective minimum hourly wage Tables 20(C) and 20(D) repeat these the opportunity cost of time for each and $18.78 based on the average wage estimates for the lower and upper bound application by approximately $8.62 ranges of renewal EAD receipts based on based on the effective minimum hourly 97 Calculations: 0.5 (burden hours) × $17.23 (effective minimum hourly wage for 1 hour of work) the lower and upper bound wage time = $8.62 (rounded). 0.5 (burden hours) × $37.55 burden costs, respectively. 95 See Instructions for Form I–765, December 26, (average wage for all occupations for 1 hour of BILLING CODE 9111–97–P 2019, available at https://www.uscis.gov/i-765 (last work) = $18.78 (rounded). visited April 21, 2020). 98 See Instructions for Form I–765, December 26, 96 The additional 30 minutes is an average 2019, available at https://www.uscis.gov/i-765 (last 99 Calculations: 0.5 hours (time to file I–765WS) estimate across all respondents completing Form I– visited April 21, 2020). Calculation: 0.5 hours × $17.23 (effective minimum hourly wage for 1 hour 765 to review additional language in the (added time to file I–765) × $17.23 (effective of work) = $8.62 (rounded). 0.5 hours (time to file instructions and gather required supporting minimum hourly wage for 1 hour of work) = $8.62 I–765WS) × $37.55 (average wage for all documentation. (rounded). occupations for 1 hour of work) = $18.78 (rounded).

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BILLING CODE 9111–97–C in turnover costs for employers. authorization. For aliens who would no As indicated in the table, the Additionally, the proposed E-Verify longer be eligible for employment estimated total opportunity costs of time requirement for renewal applicants authorization under this rule because incurred as a result of increased time would also result in costs to employers they do not meet the proposed burden for completing the forms over who are not currently enrolled in the E- exception—DHS has not determined the 10-year period from FY 2020 to FY Verify program and would seek to retain that the removal of such aliens is 2029 would range from about $116,165 impracticable because ICE has not 100 their (c)(18) worker(s). The population to $1,044,829. There would be no that could involve costs to employers identified them as unable to obtain change in the estimated time burden for involves specifically the renewal travel documents—this rule would aliens temporarily released on orders of population, and the development of affect the timing of when such alien supervision for ICE Form I–220B. ICE such impacts embodies two different workers would be removed from the completes Form I–220B and it is provisions: (i) The provisions regarding labor force, which could vary. This currently already submitted during the eligibility in general, and (ii) the E- proposed rule would result in employment authorization application Verify requirement for aliens seeking to employers incurring labor turnover process. renew an EAD. costs earlier in comparison to the state Costs to Employers of affairs in the absence of the proposed I. Unquantified Turnover Costs DHS anticipates that revising rule. Since the timing of when alien eligibility for aliens temporarily Some aliens who have final orders of workers would be removed from the released on orders of supervision could removal but are temporarily released labor force is variable regardless of lead to a loss of employment resulting from custody on orders of supervision whether this proposed rule becomes would eventually be out of the labor final or not, DHS is unable to establish 100 Calculations: $25,328 (10-year total initial force even in the absence of this a baseline estimate of the labor turnover lower bound costs) + $90,837 (10-year total renewal proposed rule. Since these aliens have costs employers currently incur. In lower bound costs) = $116,165 (minimum 10-year been ordered removed, the federal addition, DHS cannot quantify the labor total lower bound costs); $227,553 (10-year total government makes efforts to remove turnover costs that employers would initial upper bound costs) + $817,276 (10-year total renewal upper bound costs) = $1,044,829 them from the United States on an incur earlier than they would otherwise (maximum 10-year total upper bound costs). ongoing basis regardless of employment due to the proposed rule because there

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is no way to know the timing for when enrolled in E-Verify who choose to hire terms of this agreement, it is grounds for aliens would be removed. a (c)(18) alien worker, the proposed rule immediate termination from the would not cause such employers to program.107 Additionally, employers are II. Employer Costs of E-Verify incur new costs since they already must required to designate and register at Requirement for Renewal Applicants use E-Verify for all newly hired least one person that serves as an E- For renewal applicants, employment employees as of the date they signed the Verify administrator on their behalf. authorization would only be granted to E-Verify Memorandum of For this analysis, DHS assumes that applicants who continue to meet the Understanding (MOU).103 Therefore, each employer participating in the E- exception, demonstrate economic with or without the proposed rule, an Verify program designates one HR necessity, do not have subsequent employer already enrolled in the E- specialist to manage the program on its criminal convictions, are employed by a Verify program that chooses to hire a behalf. Based on the most recent U.S. employer who is a participant in (c)(18) alien worker would incur the Paperwork Reduction Act (PRA) good standing in the E-Verify program, opportunity cost of time to verify any Information Collection Package for E- and establish that they warrant a newly hired employees. Verify, DHS estimates the time burden favorable exercise of discretion. The E- Data show that some employers for an HR specialist to undertake the Verify program is a DHS web-based currently use E-Verify to confirm the tasks associated with the E-Verify system that allows enrolled employers identity and employment eligibility of program. DHS estimates the time burden to confirm the identity and eligibility of (c)(18) alien workers. Further, the for an HR specialist to complete the their employees to work in the United requirement to participate in the E- enrollment process is 2 hours 16 States by electronically matching Verify program is not new as certain minutes (2.26 hours), on average, to information provided by employees on employers are required to enroll in the provide basic company information, the Employment Eligibility Verification program as a condition of Federal review and sign the MOU, take a new (Form I–9) against records available to contracting, or as a condition of user training, and review the user DHS and the Social Security business licensing under state guides.108 Once enrolled in the E-Verify Administration (SSA).101 DHS does not legislation or other applicable law or program, DHS estimates the time burden charge a fee for employers to participate regulation.104 is 1 hour to complete ongoing annual in the E-Verify Program and create cases To renew an EAD, the proposed rule training on new features and system to confirm the identity and employment would require that (c)(18) alien workers updates.109 eligibility of newly hired employees. be employed by employers enrolled in Once enrolled in the E-Verify EAD renewal applications would be E-Verify and in good standing. program, the employer is responsible for denied for those aliens who cannot Therefore, the proposed rule would ensuring that the employment establish that they are employed by an result in additional costs for employers verification process adheres to the E-Verify employer and their $410 filing that hire (c)(18) alien workers only if requirements of the MOU and the fee would not be refunded. DHS does such employers are not currently employer verifies that all newly hired not know the number of renewal enrolled in the E-Verify program and employees are employment authorized. applicants who would incur this cost who choose to retain their (c)(18) After completing the Form I–9, the once the rule is final. workers. employer must enter the newly hired Although there is no fee to use E- For employers that have hired or employee’s information in E-Verify Verify, this proposed requirement intend to hire (c)(18) alien workers but where it is checked against records would result in costs to newly enrolling are not enrolled in the E-Verify program, available to SSA and DHS. After employers. Employers who would such employers would incur checking an employee’s information newly enroll in the E-Verify program opportunity costs of time to enroll. against these records, E-Verify returns would incur startup enrollment or Participating in the E-Verify program the case processing results, which could program initiation costs as well as and remaining in good standing requires either automatically confirm the employers to enroll in the program employee as employment authorized or additional opportunity costs of time for 105 ongoing annual training for the E-Verify online, electronically sign the return a tentative non-confirmation program. DHS assumes that employers associated MOU with DHS that sets the (TNC). Receiving a TNC does not mean who are currently participating in the E- terms and conditions of participation in an employee is not authorized to work Verify program would not incur these the program, and create E-Verify cases in the United States; rather, it indicates costs since they previously incurred for all newly hired employees. The there is an initial system mismatch MOU requires employers to abide by enrollment costs and would continue to between the information the employer lawful hiring procedures and to ensure participate in ongoing annual training entered in E-Verify from the employee’s that no employee will be unfairly regardless of this proposed rule.102 Form I–9 and the records available to discriminated against as a result of E- Additionally, DHS expects that only DHS or SSA. Employees receiving a Verify.106 If an employer violates the newly enrolled employers would incur TNC have the option to contest (take new costs for verifying the identity and action) or not contest (not take action) 103 See About E-Verify, Questions and Answers, work authorization of all of their newly April 9, 2014 https://www.e-verify.gov/about-e- hired employees, including any new verify/questions-and-answers?tid=All&page=0 (last 107 See USCIS, The E-Verify Memorandum of (c)(18) workers as a result of this visited April 16, 2020). Understanding for Employers, available at http:// 104 Certain states (for example Alabama, Arizona, www.uscis.gov/sites/default/files/USCIS/ proposed rule. For employers currently _ _ Mississippi, and South Carolina) and certain Verification/E-Verify/E-Verify Native Documents/ _ _ _ Federal contracts subject to the Federal Acquisition MOU for E-Verify Employer.pdf. 101 See E-Verify, available at https://www.e- Regulation found at 48 CFR, Subpart 22.18 require 108 The USCIS Office of Policy and Strategy, PRA verify.gov/ (last visited May 29, 2019). the use of E-Verify. Compliance Branch estimates the average time 102 Employers already participating in E-Verify 105 See The Enrollment Process at https://www.e- burdens. See PRA E-Verify Program (OMB control likely already complete ongoing annual training verify.gov/employers/enrolling-in-e-verify/the- number 1615–0092), May 24, 2016. The PRA because they voluntarily chose to enroll or because enrollment-process (last visited February 12, 2019). Supporting Statement can be found under Question of rules or regulations beyond the scope of this 106 An employer that discriminates in its use of 12 at https://www.regulations.gov/ proposed rule. DHS anticipates that such employers E-Verify based on an individual’s citizenship status document?D=USCIS-2007-0023-0081 (last visited would continue to use E-Verify regardless of their or national origin may also violate the INA’s anti- May 29, 2019). decision to hire (c)(18) workers or not. discrimination provision, at 8 U.S.C. 1324b. 109 Id.

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to resolve the DHS and/or SSA TNC a new employer to enroll in E-Verify is would incur costs even in the absence case result. E-Verify requires employers $107.51.114 DHS assumes the estimated of this proposed rule. to promptly inform the employee about opportunity cost of time to enroll in the Employers that are not participating the TNC and provide instructions for E-Verify program is a one-time cost to in E-Verify face the binary choice of contesting it. The E-Verify website also employers. In addition, DHS estimates participating in or not participating in provides detailed information about the opportunity cost of time associated the program. If the employer who had contesting the TNC.110 with 1 hour of ongoing annual training hired a (c)(18) alien worker does not In the absence of specific population for newly-enrolled entities would be participate, the employer faces the data on which entities would continue $47.57 annually in the years following potential for labor turnover costs. If the to hire (c)(18) alien workers, it is only enrollment. employer does participate, the employer possible to calculate an estimated Newly-enrolled employers would also incurs the cost of enrolling and average unit cost for an employer not incur opportunity costs of time to enter participating in the program and currently participating in E-Verify to employee information into the E-Verify implementing the program hire one (c)(18) renewal alien worker. In system to confirm their identity and requirements. On one hand, since the this analysis, DHS uses an hourly work authorization. DHS estimates the EADs last only a year, there might be compensation rate for estimating the time burden for an HR specialist to some disincentive not to participate in opportunity cost of time for an HR submit a case in E-Verify is 7.74 E-Verify. However, as discussed in the specialist. DHS uses this occupation as minutes (or 0.129 hours).115 Therefore, population section, DHS cannot make a proxy for those who might prepare DHS estimates the opportunity cost of reliable estimates of the number of and complete the verification for an time would be approximately $6.14 per employers that would enroll and employer. DHS notes that not all case.116 participate in E-Verify, and as such, employers may have an HR specialist, DHS estimates the total first year cost cannot estimate total costs germane to but rather some equivalent occupation for a new employer to enroll in E-Verify this implementation. may prepare and complete the and create a single E-Verify case in the III. Turnover Costs to Employers Who verification and create the E-Verify case. E-Verify system would be Currently Hire (c)(18) EAD Holders According to BLS data, the average 117 approximately $113.65. In In order to properly account for costs hourly wage rate for HR specialists is subsequent years, DHS estimates newly- involving employers who have hired $32.58.111 DHS estimates the hourly enrolled employers would incur costs of aliens temporarily released on orders of compensation rates by adjusting the $53.71, at minimum, to maintain their supervision who are EAD holders, DHS average hourly wage rates by a benefit- account and create one new E-Verify introduces the costs applicable to 118 to-wage multiplier to account for the case for their (c)(18) worker. DHS discuss labor turnover and E-Verify in full cost of benefits such as paid leave, recognizes that the actual cost to newly- separate segments. insurance, and retirement. Based on the enrolled employers of using E-Verify DHS anticipates this proposed rule most recent report by the BLS on the would be higher since case submissions would impose labor-related turnover average employers’ costs for employee would also include all newly hired costs on U.S. employers who employ compensation for all civilian workers in employees, not just (c)(18) workers. (c)(18) alien workers who would remain major occupational groups and However, since DHS cannot predict how eligible under this rule but are not industries, DHS estimates that the many employees each employer would enrolled in E-Verify and opt not to 112 benefits-to-wage multiplier is 1.46. hire in the future, DHS cannot estimate enroll. Employers would incur labor Therefore, DHS calculates an average how many additional E-Verify cases an turnover costs because these alien hourly compensation rate of $47.57 for employer may expect to create. workers would remain eligible for an HR specialists.113 Applying this average Employers already enrolled in the E- initial EAD under this rule but would hourly compensation rate to the Verify program who choose to hire not be eligible for a renewal EAD since estimated time burden of 2.26 hours for (c)(18) workers in subsequent years they would be unable to establish that the enrollment process, DHS estimates they are employed by an E-Verify an average opportunity cost of time for 114 Calculation: 2.26 hours for the enrollment employer. As a result, alien workers process × $47.57 total compensation wage rate for would no longer be able to work and 110 See the following for more detailed an HR specialist = $107.51. presumably employers would need to information https://www.e-verify.gov/employees/ 115 The USCIS Office of Policy and Strategy, PRA tentative-nonconfirmation-overview/how-to-correct- Compliance Branch estimates the average time find a replacement worker. For aliens a-tentative-nonconfirmation (last visited May 29, burdens. See Paperwork Reduction Act (PRA) E- who would remain eligible for an EAD 2019). Verify Program (OMB control number 1615–0092), under this rule, the duration of time to 111 See U.S. Department of Labor, Bureau of Labor May 24, 2016. The PRA Supporting Statement can remove aliens on orders of supervision Statistics, Occupational Employment and Wages, be found under Question 12 at https:// May 2019, Human Resources Specialist (SOC #13– www.regulations.gov/document?D=USCIS-2007- from the U.S. would likely be longer 1071): https://www.bls.gov/oes/2019/may/ 0023-0081 (last visited May 29, 2019). than average as DHS has determined oes131071.htm (last visited May 7, 2020). 116 Calculation: 0.129 hours to submit a query * that removal for these aliens is 112 The benefits-to-wage multiplier is calculated $47.57 total compensation wage rate for an HR impracticable because all countries from as follows: (Total Employee Compensation per specialist = $6.14. which DHS has requested travel hour)/(Wages and Salaries per hour) = $37.10/ 117 Calculation: $107.51 opportunity cost for a $25.47 = 1.457 = 1.46 (rounded). See Economic new entity to enroll in E-Verify + $6.14 cost to documents have affirmatively declined News Release, ‘‘Employer Cost for Employee submit a query into E-Verify = $113.65. to issue such documents. Therefore, Compensation— December 2019,’’ (March 2020), 118 Calculation: $47.57 one hour of annual employers who do not use or are U.S. Department of Labor, BLS, Table 1. Employer training + $6.14 cost to submit a query into E-Verify enrolled in E-Verify would incur costs per hour worked for employee compensation = $53.71. E-Verify has a Work Authorization Docs and costs as a percent of total compensation: Expiring case alert that notifies employers that an turnover costs in cases where their Civilian workers, by major occupational and employee’s EAD or Arrival-Departure Record (Form (c)(18) alien workers would remain industry group. March 19, 2020, available at https:// I–94) document is expiring. The alert is a reminder eligible for an EAD under this rule. www.bls.gov/news.release/archives/ecec_ for the employer to reverify the employee. See However, U.S. employers who are not 03192020.pdf (last visited March 24, 2020). About E-Verify Questions and Answers, Creating 113 Hourly compensation of $47.57 = $32.58 and Managing Cases, page 2 (04/30/2018) at https:// enrolled in E-Verify could avoid average hourly wage rate for HR specialists × 1.46 www.e-verify.gov/about-e-verify/questions-and- turnover costs by choosing to enroll in benefits-to-wage multiplier. answers (last viewed Jul. 15, 2020). the program. If an employer chooses to

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enroll in E-Verify, the employer would workers and use, or would enroll in, E- I. Government Transfers instead incur the associated costs to Verify, it is only possible to calculate an enroll in the system, submit cases (for estimated range of average per employee This proposed rule could reduce taxes all newly hired employees, not just turnover costs an employer not paid to the federal government (a (c)(18) workers), and maintain their currently participating in E-Verify could transfer payment) in the short term. account. incur. In order to estimate labor During the period of vacancy for a job Employee turnover may cause turnover costs, DHS uses estimated formerly held by the (c)(18) alien employers to incur various direct and employee annual earnings of $35,838 worker, the federal government would indirect turnover costs. Direct turnover based on the effective minimum wage as not be collecting taxes. cost employers could incur include a lower bound and $78,106 based on the In addition, in instances where an those that involve separation and average wage developed previously in employer cannot hire replacement labor replacement costs. Separation costs this analysis (see ‘‘Proposal Regarding for a position an alien on an order of include exit interviews, severance pay, EAD Eligibility’’ section) and an upper supervision had or would have filled, and assigning other employees to bound. DHS multiplied each of these this proposed rule may result in a temporarily cover the departing estimated employee annual earnings by reduction in taxes paid to the federal employee’s duties and functions, which 20 percent in accordance with the 2012 government. It is difficult to quantify may require overtime or temporary CAP Survey. Using annual earnings income tax losses because individual staffing. Replacement costs typically based on the effective minimum wage tax situations vary widely.121 However, include those related to advertising (lower bound), DHS estimates labor DHS estimates the potential reduction positions, search and agency fees, turnover costs would be approximately in tax revenue generated through screening applicants, interviewing, $7,168 per worker and using the annual employment tax programs, namely background verification, employment earnings based on the average wage Medicare and Social Security, which testing, hiring bonuses, and possible (upper bound), DHS estimates labor have a combined tax rate of 7.65 percent travel and relocation costs. Once hired, turnover costs would be approximately (6.2 percent and 1.45 percent, employers may incur additional costs 120 respectively).122 DHS notes that the total for training, orientation, and $15,621 per worker. Turnover costs would be higher if a U.S. employer that estimated reduction in tax transfer assessments. Additionally, other direct payments from employees and costs may include loss of productivity does not use or enroll in E-Verify employs more than one (c)(18) alien employers to Medicare and Social and possible reduced profitability due Security is 15.3 percent since both the to operational and production worker who would remain eligible under this rule. DHS recognizes that employee and employer would not pay disruptions. Moreover, employers may their respective portions of Medicare incur indirect costs, including loss of turnover costs would occur in the year an EAD expires and, depending on the and Social Security taxes when a institutional knowledge, networking, position remains unfilled by an alien on and impacts to morale and interpersonal effective date of this rule should it an order of supervision who held or work relationships. These indirect costs become finalized, employers who incur would have filled the position.123 are more difficult to measure. turnover costs may incur them in up to DHS has reviewed recent research and two consecutive fiscal years. To estimate the range of employment literature on turnover costs. While peer- DHS is unable to predict how many tax losses, we take the estimated lost reviewed research on turnover costs is employers would actually participate in earnings for the range of initial and not extensive, there are several studies E-Verify in order to retain their (c)(18) renewal projected filers at the prevailing available which are cited repeatedly alien workers or the total number of and average wage rates from Table 18, across various reports focusing on employment authorizations they would columns G and H, and multiply each specific locations and occupations, and confirm through E-Verify should they year by 15.3 percent. These calculations measure turnover costs in different choose to participate. DHS assumes that are shown in Table 21. ways. For example, a 2012 report employers would make a cost-benefit BILLING CODE 9111–97–P published by the Center for American decision between incurring labor Progress (‘‘2012 CAP Survey’’) reviewed turnover costs and incurring the current 121 More than 44 percent of workers pay no several dozen studies that considered and future costs to enroll and federal income tax (Sept. 16, 2018) available at 119 https://www.marketwatch.com/story/81-million- both direct and indirect costs. This participate in E-Verify. DHS recognizes survey found that turnover costs per americans-wont-pay-any-federal-income-taxes-this- that an employer that enrolls and year-heres-why-2018-04-16. employee ranged from 10 to 30 percent participates in E-Verify would confirm 122 The various employment taxes are discussed of the salary for most salaried workers employment authorization for all new in more detail at https://www.irs.gov/businesses/ with an average mid-point of about 20 small-businesses-self-employed/understanding- hires, not only their (c)(18) alien percent of the worker’s salary in total employment-taxes. See IRS Publication 15, Circular workers. Unlike the development of the E, Employer’s Tax Guide for specific information on labor turnover costs. costs germane to forgone earnings, in employment tax rates. https://www.irs.gov/pub/irs- In the absence of specific data on _ which DHS could at least deduce a pdf/p15 18.pdf. See More than 44 percent of which employers hire (c)(18) alien Americans pay no federal income tax (Sep. 16, range for the population based on some 2018) available at: https://www.marketwatch.com/ 119 See ‘‘There Are Significant Business Costs to limited data, doing so here would be story/81-million-americans-wont-pay-any-federal- Replacing Employees,’’ By Heather Boushey and completely speculative, and we do not income-taxes-this-year-heres-why-2018-04-16. (last Sarah Jane Glynn (2012), Center for American endeavor to rely on a range here. visited Sep. 16, 2018) Progress, at: https://www.americanprogress.org/ 123 Calculation: (6.2 percent Social Security + issues/economy/reports/2012/11/16/44464/there- 1.45 percent Medicare) × 2 employee and employer are-significant-business-costs-to-replacing- 120 Calculations: $35,838 × 20% = $7,168; $78,106 losses = 15.3 percent total estimated tax loss to employees/ (last visited Apr. 15, 2020). × 20% = $15,621. government.

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Lost earnings, which DHS estimates losses ranging between $923,844,794 employee, there could be additional could range between $6,038,201,268 and $2,251,612,274.125 Annualized at 7 federal income tax losses not estimated and $14,716,520,096 124 over the 10-year percent, employment tax losses would here. There may also be state and local period from FY 2020 to FY 2029, would range from approximately $93,947,687 income tax losses that would vary result in corresponding employment tax to $228,789,887 (Table 22). Again, according to the jurisdiction, but which depending on the circumstances of the DHS is unable to quantify. It is noted 124 Calculations (data from Table 18): that the potential decrease in tax 125 $1,388,614,986 (10-year total initial upper bound Calculations: $212,458,093 (10-year total transfers only applies to the costs) + $4,649,586,282 (10-year total renewal upper initial lower bound costs) + $711,386,701 (10-year bound costs) = $6,038,201,268 (minimum 10-year total renewal lower bound costs) = $923,844,794 compensation impacts, not to labor total lower bound costs); $3,384,879,722 (10-year (minimum 10-year total lower bound costs); turnover costs, costs associated with the total initial upper bound costs) + $11,331,540,374 $517,886,597 (10-year total initial upper bound forms’ burdens, or implementation and (10-year total renewal upper bound costs) = costs) + $1,733,725,677 (10-year total renewal upper $14,716,420,096 (maximum 10-year total upper bound costs) = $2,251,612,274 (maximum 10-year usage of E-Verify. bound costs). total upper bound costs).

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

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BILLING CODE 9111–97–C

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As table 22 shows, the projected 10- spend fewer resources on monitoring additional factors, or who may opt to year monetized undiscounted costs of and tracking aliens on orders of not apply for a physical EAD card. the proposed rule for the period fiscal supervision. Monetizing this benefit is Therefore, since DHS cannot separate year 2020 to 2029 could be as high as not possible at this time. Although the out the number of applicants who may about $14.72 billion with a minimum federal government makes efforts to benefit from this proposed provision, cost estimate of $6.04 billion under the remove these aliens from the United we consider a ‘‘best-case’’ scenario. In assumptions relied on.126 The majority States on an ongoing basis regardless of the best-case scenario, none of the 147 of the costs of this rule would result employment authorization, there is no (the 5-year average number of cases, from lost labor earnings, if companies way to know the timing of when aliens Table 16) aliens who are granted CAT are unable to find reasonable labor would be removed, if an alien would be deferral of removal would apply for a substitutes for the position the aliens motivated to self-deport or, ultimately, physical EAD card after the effective temporarily released on orders of who would execute the removal. date of this rule since they would not supervision would have filled. DHS The proposal to revise the (a)(10) need to obtain an EAD in order to begin notes there are unquantified costs not employment authorization category work. Under this scenario, benefits reflected in the estimates above. could provide aliens who are granted would accrue from not paying filing fees CAT deferral of removal with monetary Benefits and not spending time filing Form I– benefits that can be quantified. 765. The filing fee for aliens applying The benefits potentially realized by Currently, this population is regulated for employment authorization is the proposed rule are both qualitative to apply for an EAD under the (c)(18) $550.128 DHS estimates this population and quantitative. DHS has provided category. In practice, DHS acknowledges could save a maximum $80,850 in filing estimates of monetized benefits, where that some aliens who are granted CAT fees in the first year of the rule possible. DHS estimates that U.S. deferral of removal have applied under becoming effective.129 The other benefit workers could have a better chance of the (a)(10) Form I–765 category and would be accrued in the form of obtaining jobs that some (c)(18) alien adjudication of these applications has opportunity costs since these aliens workers currently hold, as the proposed been inconsistent. This proposed would not spend time preparing and rule would reduce employment revision would thus reduce confusion submitting Form I–765 and any other authorization eligibility for the (c)(18) for aliens who are granted CAT deferral evidence that would have been required alien worker population. of removal applying for an EAD and under the (c)(18) considerations. DHS is In addition, the restriction on the would lead to consistent Form I–765 able to quantify the savings that would ability to obtain work authorization may adjudication for this population. result from not submitting Form I–765, increase incentives for aliens with final For those who currently apply under which has an estimated time burden of orders of removal to depart the United the (c)(18) category, Form I–765 must be 4 hours and 30 minutes.130 Using the States, which could decrease the accompanied by the filing fee and a lower and upper bound wage rates, the amount of time aliens are in this status copy of the DOJ Executive Office for opportunity cost of time savings would and could save government resources Immigration Review (EOIR) immigration range from about $77.54 to $168.98 per expended while aliens are temporarily judge’s order of removal. As stated in alien in the first year.131 For the 147 released on orders of supervision and the Form I–765 instructions, three aliens who are granted CAT deferral of pending repatriation. ICE oversees the additional factors may also be removal, the opportunity cost of time monitoring and tracking of aliens on considered under the (c)(18) category, savings would range from $11,398 to orders of supervision as well as including the existence of a dependent $24,840 under this scenario.132 Per effectuates their removal from the spouse and/or children in the United United States.127 Managing aliens States who rely on the alien for support; alien, benefits for this population would temporarily released on orders of existence of economic necessity to be range from approximately $627.54 to supervision consumes DHS resources. employed; and the anticipated length of $718.98 per alien, with a total benefit Specifically, ICE must devote resources ranging from $92,248 to $105,690 time before the alien can be removed 133 to track and monitor the status of these from the United States. If supporting annually. Additional savings could aliens. This includes conducting regular evidence is requested, DHS recognizes 128 USCIS was previously authorized to collect a check-ins to ensure compliance with that there would be associated $410 Form I–765 filing fee. However, the recently conditions of release. These cases opportunity costs of time for those promulgated fee rule updated the fee for Form I– absorb scarce enforcement resources aliens. 765 to $550. The final fee rule is expected to take that could be diverted to, among other Aliens under the (a)(10) category are effect on October 3, 2020. See U.S. Citizenship and not required to apply to DHS to obtain Immigration Services Fee Schedule and Changes to things, identifying and detaining Certain Other Immigration Benefit Request criminal aliens. If fewer aliens with employment authorization before they Requirements, 85 FR 46788 (Aug. 3, 2020). final orders of removal on orders of can begin work. However, (a)(10) aliens 129 $550 (filing fee to apply for an initial EAD supervision remain in the United States are required to apply (i.e., submit Form under the (c)(18) category) × 147 (average number for an extended period of time because I–765) in order to receive a physical of cases granted CAT deferral of removal) = EAD card if they want a document $80,850. this rule increases the incentives for 130 See Instructions for Form I–765 (05/31/2020) them to depart, then ICE is likely to evidencing their employment at https://www.uscis.gov/i-765. authorization pursuant to their grant of 131 Calculations: 4.5 hours (time burden for Form 126 Calculations: $6,038,201,268 (lost labor withholding or deferral. Under the I–765) × $17.23 (one hour of work at prevailing earnings costs) + $824,075 (biometrics costs) + (a)(10) category, aliens file Form I–765 wage) = $77.54; 4.5 hours (time burden for Form I– × $116,165 (time burden to complete forms costs) = with a copy of the EOIR immigration 765) $37.55 (one hour of work at average wage $6,039,141,507 minimum undiscounted 10-year for all occupations) = $168.98. total; $14,716,420,096 (lost labor earnings costs) + judge’s signed order granting 132 Calculations: $77.54 × 147 (the average $5,476,238 (biometrics costs) + $1,044,829 (time withholding of removal. There are no number of cases granted CAT deferral of removal) burden to complete forms costs) = $14,722,941,163 additional factors for consideration. = $11,398; $168.98 × 147 (the average number of maximum undiscounted 10-year total. DHS is not able to determine the cases granted CAT deferral of removal) = $24,840. 127 See Immigration Enforcement, Removal 133 Calculation: $77.54 (lower bound opportunity https://www.ice.gov/removal and Enforcement and number of aliens who are granted CAT cost of time) + $550 (filing fee) = $627.54; $168.98 Removal Operations, ERO Overview https:// deferral of removal who apply under the (upper bound opportunity cost of time) + $550 www.ice.gov/ero. (c)(18) category, submit evidence for the Continued

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also be accrued in the form of the Small Business Regulatory Enforcement is essential to the integrity opportunity costs if applicants would Enforcement Fairness Act of 1996, of the immigration system. have spent time submitting evidence Public Law 104–121 (March 29, 1996), ii. A Succinct Statement of the under any of the (c)(18) considerations. requires Federal agencies to consider The scenario presented here is an Objectives of, and Legal Basis for, the the potential impact of regulations on Proposed Rule extreme to best estimate the maximum small businesses, small governmental savings of this proposed provision. It is jurisdictions, and small organizations DHS’s authority to detain and release likely that some aliens who are granted during the development of their rules. aliens ordered removed from custody on CAT deferral of removal would continue The term ‘‘small entities’’ comprises orders of supervision and to grant to submit Form I–765 and pay the $550 small businesses, not-for-profit employment authorization is found in filing fee in order to obtain a physical organizations that are independently several statutory provisions. Section 102 EAD card. Therefore, the overall benefit owned and operated and are not of the Homeland Security Act of 2002 of this proposed provision is presented dominant in their fields, or (HSA) (Pub. L. 107–296, 116 Stat. 2135), using a range from $0 to $105,690 governmental jurisdictions with 6 U.S.C. 112 and section 103 of the INA, annually. populations of less than 50,000.137 8 U.S.C. 1103, charge the Secretary with DHS welcomes any data or public This proposed rule would eliminate the administration and enforcement of comments on the benefits of removing eligibility for employment authorization the immigration and naturalization laws 138 the eligibility of employment for aliens who have final orders of of the United States. In addition to authorizations to certain (c)(18) workers. removal and are temporarily released on establishing the Secretary’s general DHS is particularly interested in public orders of supervision except in cases authority to administer and enforce comments about the benefits to U.S. where the alien meets the exception immigration laws, section 103 of the workers of removing the eligibility of under this proposed rule (i.e. removal is INA, 8 U.S.C. 1103, enumerates various employment authorization for (c)(18) impracticable because all countries from related authorities including the workers. DHS is also interested in whom DHS requested travel documents Secretary’s authority to establish receiving comments on the increased have affirmatively declined to issue regulations as are necessary for carrying employment opportunities for U.S. such documents). DHS has estimated out his authority. Section 241 of the workers due to this rule. DHS welcomes that the rule would cover an upper INA, 8 U.S.C. 1231, governs the any overall public feedback or data that bound population of about 22,090 detention, release, and removal of aliens could assist DHS in quantifying the aliens. As previously explained, the after they have received an administratively final order of removal. benefits of the proposed rule. provision being proposed may result in Section 274A of the INA, 8 U.S.C. Labor Market Overview forgone labor earnings for aliens 1324a, governs employment of aliens temporarily released on order of As discussed in the population who are authorized to be employed by supervision. This rule directly regulates section of this analysis, USCIS statute or in the discretion of the and impacts aliens temporarily released anticipates approving somewhere Secretary and the requirements U.S. on orders of supervision and between 17,077 and 22,090 Form I–765 employers must follow to verify the individuals are not considered a small applications annually from aliens with identity and employment authorization entity under the Regulatory Flexibility final orders of removal in the absence of of their employees. The authority to 134 Act. Some entities (including this proposed rule. The U.S. labor establish and operate E-Verify is found employers) could be indirectly impacted force consists of a total of 160,143,000 in sections 401–405 of IIRIRA, Public by labor turnover costs or the costs of workers, according to recent data Law 104–208, 110 Stat. 3009–546. The 135 implementing and utilizing E-Verify by (September 2020). Therefore, the Secretary proposes the changes in this this proposed rule because they employ maximum population affected by this rule under these authorities. proposed rule (about 22,090) represents an affected alien. DHS has prepared an 0.01 percent of the U.S. labor force, initial regulatory flexibility analysis iii. A Description of and, Where suggesting that the number of potential (IRFA) to accompany this proposed rule. Feasible, an Estimate of the Number of workers no longer eligible for an EAD Small Entities to Which the Proposed i. A Description of the Reasons Why the Rule Will Apply make up a very small percentage of the Action by the Agency is Being U.S. labor market.136 Considered This rule directly regulates and B. Regulatory Flexibility Act impacts aliens temporarily released on DHS has determined that the current orders of supervision and individuals The Regulatory Flexibility Act of 1980 employment authorization regulations are not considered a small entity under (RFA), 5 U.S.C. 601–612, as amended by governing discretionary employment the Regulatory Flexibility Act. Since authorization do not adequately reflect some small entities may be indirectly × (filing fee) = $718.98; $627.54 147 = $92,248 DHS’s enforcement mission and impacted by this proposed rule by (lower bound total benefit); $718.98 × 147 = priorities. As discussed more fully in $105,690 (upper bound total benefit). employing an affected alien, DHS has 134 Calculations: 4,241 (projected initial approvals the preamble, DHS’s enforcement goals developed this IRFA to evaluate the FY 2029) + 12,836 (projected renewal approvals FY are not consistent with allowing aliens potential impact on small entities. Small 2029) = 17,077 minimum projected annual to work when they have an order of entities could incur costs due to the approvals; 4,728 (projected initial approvals FY removal from the United States. 2020) + 17,362 (projected renewal approvals FY proposed rule if they employ EAD 2020) = 22,090 maximum projected annual DHS is proposing through this holders who are affected by the new approvals. rulemaking to align its discretionary requirements of the proposed rule. 135 The BLS labor force data are found in Table authority to grant employment However, DHS does not currently A–1. Employment status of the civilian population authorization with its immigration by sex and age, seasonally adjusted, from the require information on the employer or Current Population Survey October 2020 News enforcement mission and priorities. employment status of the EAD holder Release: https://www.bls.gov/news.release/archives/ and thus is unable to determine how empsit_10022020.pdf. (last visited October 8, 2020). 137 A small business is defined as any 136 Calculation: (22,090 maximum projected independently owned and operated business not many entities could be impacted by the annual (c)(18) alien worker approvals/160,143,000 dominant in its field that qualifies as a small workers) *100 = 0.01 percent (rounded). business per the Small Business Act, 15 U.S.C. 632. 138 Public Law 104–208, div. C, at secs. 401–405.

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proposed rule or whether the entities E-Verify program who choose to hire than one (c)(18) alien worker who impacted would be considered small (c)(18) workers in subsequent years would remain eligible under this rule. entities. This is because these EADs are would incur costs even in the absence DHS recognizes that turnover costs open market EADs,139 and therefore of this proposed rule. would occur in the year an EAD expires DHS does not currently collect Small entities that are not and, depending on the effective date of information on the employer or the participating in E-Verify face the binary this rule should it become finalized, employment status of the EAD holder. choice of participating in or not employers who incur turnover costs This proposed rule may cause some participating in the program. If an entity may incur them in up to two who had hired a (c)(18) alien worker existing EAD holders to be ineligible to consecutive fiscal years. renew their EADs. In such cases, small does not participate, the entity faces the entities may incur opportunity costs potential for labor turnover costs. If the DHS is unable to predict how many associated with having to choose the entity does participate, the entity incurs entities would actually participate in E- next best alternative to immediately the cost of enrolling and participating in Verify in order to retain their (c)(18) filling a job an EAD holder would have the E-Verify program and implementing alien workers or the total number of filled in situations where eligibility for the program requirements. On one hand, employment authorizations they would the EAD is not met. If entities cannot since the EADs last only a year, there confirm through E-Verify should they find reasonable substitutes for the labor might be some disincentive not to choose to participate. DHS assumes that the aliens temporarily released on participate in E-Verify. However, as entities would make a cost-benefit orders of supervision would have discussed in the population section, decision between incurring labor provided, removing EAD eligibility for DHS cannot make reliable estimates of turnover costs and incurring the current these aliens would result primarily in the number of entities that would enroll and future costs to enroll and costs to those entities through lost and participate in E-Verify, and as such, participate in E-Verify. DHS recognizes productivity and lost profits. DHS cannot estimate total costs germane to that an entity that enrolls and this implementation. expects that this type of turnover would participates in E-Verify would confirm If a small entity who employs (c)(18) be incurred in the first two years after employment authorization for all new the effective date of this rule.140 Small alien workers who would remain hires, not only their (c)(18) alien entities, that do not currently participate eligible under this rule is not enrolled workers. in E-Verify would incur costs to in E-Verify and opts not to enroll, the implement and use the program in order entity would incur labor related DHS has no way to predict how many to retain aliens temporarily released on turnover costs. Entities would incur small entities would adopt the E-Verify orders of supervision in order for the labor turnover costs because these alien system and how many workers they alien to be eligible for a renewal EAD workers would remain eligible for an would vet. Since this rule proposes to under this rule. DHS estimates the total initial EAD under this rule, but would eliminate eligibility for employment first year cost for a new entity to enroll not be eligible for a renewal EAD since authorization for aliens temporarily in the E-Verify program and create a they would be unable to establish that released on orders of supervision, the single E-Verify case would be they are employed by an entity enrolled impact on the renewal population approximately $113.65. In subsequent in E-Verify. As a result, alien workers would depend on which aliens remain years, DHS estimates newly enrolled would no longer be able to work and eligible and if the alien’s employer presumably entities would need to find entities would incur a minimal annual already participates in E-Verify or a replacement worker. For aliens who cost of $53.71 to maintain their account would be willing to enroll and would remain eligible for an EAD under and create one new case for their (c)(18) participate in E-Verify if the employer is worker. DHS recognizes that the actual this rule, the duration of time to remove aliens on orders of supervision from the not enrolled. DHS cannot rule out that cost to newly-enrolled entities of using some employers would incur labor E-Verify would be higher since case U.S. would likely be longer than average turnover costs as a result of choosing to submissions would also include all as DHS has determined that removal for not enroll and participate in E-Verify. newly hired employees, not just (c)(18) these aliens is impracticable because all Because of the uncertainty regarding workers. However, since DHS cannot countries from which DHS has predict how many employees each requested travel documents have eligibility, DHS is unable to estimate a entity would hire in the future, DHS affirmatively declined to issue such range for the renewal population that cannot estimate how many additional E- documents. Therefore, entities who do would be impacted by this provision Verify cases an entity may expect to not use or are enrolled in E-Verify and attempting to do so would be create. Entities already enrolled in the would incur turnover costs in cases completely speculative. However, DHS where their (c)(18) alien workers would acknowledges there could be renewal 139 Open market EADs allow aliens to work in any remain eligible for an EAD under this applicants who would be impacted by occupation or industry. The alien is not required to rule. this provision, which could, in turn, work for a specific employer or in any specific Using annual earnings based on the affect employers, some of which could industry or occupation, and the U.S. employer is effective minimum wage (lower bound), not required to test the labor market to ensure that be small entities. DHS seeks comments there are no U.S. workers available and that the DHS estimates labor turnover costs from the public on the impacts to small hiring of the (c)(18) alien will not adversely affect would be approximately $7,168 per entities from enrolling and participating the wages and working conditions for similarly worker and using the annual earnings in the E-Verify program. DHS also seeks situated U.S. workers. based on the average wage (upper 140 public comment on the number of small We do not attribute turnover costs from bound), DHS estimates labor turnover ineligibility in other years because we operate businesses that may be affected as well costs would be approximately $15,621 under the assumption that if an initial EAD is as compliance costs to those small approved, then the renewal would also be approved per worker.141 Turnover costs would be businesses as a result of this proposed under the proposed criteria of this rule. DHS higher if a U.S. employer that does not recognizes that in some cases, a renewal filing rule. could be denied even in the wake of an approved use or enroll in E-Verify employ more initial EAD in future years, but the number of instances this would occur is unknown. Estimation 141 Calculations: $35,838 × 20% = $7,168; $78,106 of these cases would be speculative at this time. × 20% = $15,621.

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iv. A Description of the Projected mandate in a proposed or final agency distribution of power and Reporting, Recordkeeping, and Other rule that may result in a $100 million or responsibilities between the federal Compliance Requirements of the more expenditure (adjusted annually for government and Indian tribes. Proposed Rule, Including an Estimate of inflation) in any one year by State, local, H. Family Assessment the Classes of Small Entities Which Will and tribal governments, in the aggregate, Be Subject to the Requirement and the or by the private sector. The value DHS has reviewed this proposed rule Type of Professional Skills Necessary equivalent of $100 million in 1995, in line with the requirements of section for Preparation of the Report Record adjusted for inflation to 2019 levels by 654 of the Treasury General Appropriations Act, 1999, Public Law This rule would not directly impose the Consumer Price Index for All Urban 142 105–277. DHS has systematically any reporting, recordkeeping, or other Consumers (CPI–U), is $168 million. reviewed the criteria specified in compliance requirements on small While this rule may result in the section 654(c)(1). DHS has determined entities. expenditure of more than $100 million annually, the rulemaking is not a that the proposed rule may adversely v. Identification, to the Extent ‘‘Federal mandate’’ as defined for cause personal and family-related Practicable, of All Relevant Federal UMRA purposes. Therefore, no actions hardships, including causing Rules That May Duplicate, Overlap or were deemed necessary under the disruptions to the alien, U.S. citizen, or Conflict With the Proposed Rule provisions of the UMRA. LPR spouses and/or children dependent on the income currently earned by the DHS is unaware of any relevant E. Executive Order 13132 (Federalism) federal rule that may duplicate, overlap, affected alien and may decrease or conflict with the proposed rule. This rule will not have substantial disposable income and increase the direct effects on the States, on the poverty of certain family members. vi. Description of Any Significant relationship between the federal However, DHS notes that an alien with Alternatives to the Proposed Rule government and the States, or on the a final order of removal will eventually Which Accomplish the Stated distribution of power and be removed from the country and such Objectives of Applicable Statutes and responsibilities among the various families should ultimately expect to Which Minimize Any Significant levels of government. DHS does not experience such hardships. Thus, this Economic Impact of the Proposed Rule expect that this proposed rule would proposed rule could result in families on Small Entities impose substantial direct compliance experiencing such hardships earlier in This rule directly regulates and costs on State and local governments or comparison to the state of affairs in the impacts aliens temporarily released on preempt state law. Therefore, in absence of the proposed rule. DHS has orders of supervision and individuals accordance with section 6 of E.O. 13132, also determined that the proposed rule are not considered a small entity under it is determined that this rule does not neither strengthens or erodes the the Regulatory Flexibility Act. have sufficient federalism implications authority and rights of parents in the Accordingly, DHS is not aware of any to warrant the preparation of a education, nurture and supervision of alternatives to the proposed rule that federalism summary impact statement. their children; nor affects the ability for a family to perform its functions, or accomplish the stated objectives and F. Executive Order 12988 (Civil Justice substitutes governmental activity or that would minimize the economic Reform) impact of the proposed rule on small function; this is not an action that can entities as this rule already imposes no This rule meets the applicable be carried out by State or local direct costs on small entities. DHS standards set forth in sections 3(a) and government or by the family, nor does requests comments and seeks 3(b)(2) of E.O. 12988. the action establish an implicit or alternatives from the public that will G. Executive Order 13175 Consultation explicit policy concerning the accomplish the same objectives. and Coordination With Indian Tribal relationship between the behavior and Governments personal responsibility of youth and the C. Congressional Review Act norms of society. For the reasons stated This proposed rule is a major rule as This proposed rule does not have elsewhere in this preamble, however, defined by 5 U.S.C. 804, also known as tribal implications under E.O. 13175, DHS has determined that the benefits of the Congressional Review Act (CRA) as Consultation and Coordination with the action justify the financial impact on enacted in section 251 of the Small Indian Tribal Governments, because it the family. As described in the Purpose, Business Regulatory Enforcement would not have a substantial direct Background, and Discussion sections of Fairness Act of 1996, Public Law 104– effect on one or more Indian tribes, on this rule, DHS has compelling legal and 121, 110 Stat. 847, 868 et seq. the relationship between the federal policy reasons for the proposed Accordingly, this rule, if enacted as a government and Indian tribes, or on the regulatory action, including the final rule, would be effective at least 60 enforcement of the general prohibition 142 U.S. Bureau of Labor Statistics, Historical days after the date on which Congress Consumer Price Index for All Urban Consumers against providing alien’s ordered receives a report submitted by DHS (CPI–U): U.S. City Average, All Items, available at removed with employment under the CRA, or 60 days after the final https://www.bls.gov/cpi/tables/supplemental-files/ authorization and encouraging those rule’s publication, whichever is later. historical-cpi-u-202001.pdf (last visited Feb. 19, aliens with final orders of removal to 2020). depart the United States. D. Unfunded Mandates Reform Act of Calculation of inflation: (1) Calculate the average 1995 monthly CPI–U for the reference year (1995) and the I. National Environmental Policy Act current year (2019); (2) Subtract reference year CPI– The Unfunded Mandates Reform Act U from current year CPI–U; (3) Divide the difference DHS Directive 023–01 Rev. 01 of 1995 (UMRA) is intended, among of the reference year CPI–U and current year CPI– (Directive) and Instruction Manual 023– U by the reference year CPI–U; (4) Multiply by 100 other things, to curb the practice of = [(Average monthly CPI–U for 2019¥Average 01–001–01 Rev. 01 establish the policies imposing unfunded Federal mandates monthly CPI–U for 1995)/(Average monthly CPI–U and procedures DHS and its on State, local, and tribal governments. for 1995)] * 100 = [(255.657¥152.383)/152.383] * components use to comply with the Title II of UMRA requires each Federal 100 = (103.274/152.383) *100 = 0.6777 * 100 = National Environmental Policy Act 67.77 percent = 68 percent (rounded). Calculation agency to prepare a written statement of inflation-adjusted value: $100 million in 1995 (NEPA) and the Council on assessing the effects of any federal dollars * 1.68 = $168 million in 2019 dollars. Environmental Quality (CEQ)

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regulations for implementing NEPA, 40 environmental effect. Instruction A3(a) ‘‘Promulgation of rules of a CFR parts 1500 through 1508. The CEQ Manual section V.B(2)(a)–(c). strictly administrative or procedural regulations allow Federal agencies to This proposed rule would amend nature’’ and A3(d) ‘‘Promulgation of establish, with CEQ review and regulatory criteria for determining rules . . . that interpret or amend an concurrence, categories of actions eligibility for employment authorization existing regulation without changing its (‘‘categorical exclusions’’), which for aliens temporarily released from environmental effect.’’ Instruction experience has shown do not custody on an order of supervision by Manual, Appendix A, Table 1. individually or cumulatively have a amending two existing regulations. Furthermore, the proposed amendments First, it would amend 8 CFR 274a.12 to significant effect on the human are not part of a larger action and do not limit employment authorization environment and, therefore, do not present extraordinary circumstances eligibility to aliens whose removal DHS require an Environmental Assessment or creating the potential for significant has determined is impracticable because environmental impacts. Therefore, the Environmental Impact Statement. 40 all countries from whom DHS has proposed amendments are categorically CFR 1507.3(b)(2)(ii), 1508.4. For an requested travel documents have excluded from further NEPA review. action to be categorically excluded, the affirmatively declined to issue such Instruction Manual requires the action documents and who establish economic J. Paperwork Reduction Act to satisfy each of the following three necessity. Second, this proposed rule conditions: (1) The entire action clearly would amend the application process in DHS is submitting the information fits within one or more of the categorical 8 CFR 274a.13 for aliens seeking initial collection requirements in this rule to exclusions; (2) the action is not a piece employment authorization by making OMB for review and approval in of a larger action; and (3) no certain changes to the supporting accordance with requirements of the extraordinary circumstances exist that documentation submitted with the PRA of 1995, 44 U.S.C. 3501–3512. create the potential for a significant application. The proposed amendments Table 23 shows a summary of the forms clearly fit within categorical exclusion that are part of this rulemaking. TABLE 23

Applicability to employment Form Form name New or updated form General purpose of form General categories filing authorization

I–765 ...... Application for Update—revises and adds in- Applicants use this form to re- • Aliens temporarily released USCIS will require aliens Employment structions and questions for quest employment author- on orders of supervision. seeking employment author- Authorization. aliens seeking employment ization from USCIS. • Aliens granted deferral of ization based on an order of authorization who are sub- removal under the regula- supervision or DCAT to file ject to a final order of re- tions implementing the CAT. an application to receive an moval and have been tem- EAD. porarily released from cus- tody on an order of super- vision and for aliens who are recipients of deferral of removal under the regula- tions implementing the CAT. I–765WS ...... Form I–765 Update—updates instructions Applicants for employment au- • Aliens temporarily released USCIS will require aliens Worksheet. to include aliens temporarily thorization use this form to on orders of supervision. seeking employment author- released on orders of super- provide financial information ization based on an order of vision in the list of aliens demonstrating an economic supervision to submit Form who must complete the need for employment au- I–765WS to establish eco- Form I–765WS to show thorization and an expla- nomic need for an EAD. economic necessity for em- nation of the circumstances ployment authorization. resulting in the need for an EAD.

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

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removal and was temporarily released 8 CFR Part 274a part. USCIS will only grant employment on an order of supervision to file the Administrative practice and authorization if USCIS determines that Form I–765. USCIS will use the data procedure, Aliens, Employment, the alien meets the criteria for collected on this form to determine if an Penalties, Reporting and recordkeeping employment authorization under 8 CFR individual temporarily released on an requirements. 274a.12(c)(18) and warrants a favorable order of supervision and seeking exercise of discretion. The alien must employment authorization is eligible Regulatory Amendments request employment authorization on based on DHS’s determination that his Accordingly, DHS proposes to amend the form and in the manner prescribed or her removal is impracticable because parts 106, 241 and 274a of chapter I, by USCIS and according to the form all countries from whom DHS has subchapter B, of title 8 of the Code of instructions, and must submit requested travel documents have Federal Regulations as follows: biometrics, with any required fee. affirmatively declined to issue such * * * * * documents. Form I–765WS is used to PART 106—USCIS FEE SCHEDULE determine if the individual seeking ■ 5. Amend § 241.5 by revising employment authorization has an ■ 1. The authority for Part 106 paragraphs (a) and (c) to read as follows: economic need to work. continues to read as follows: § 241.5 Conditions of release after removal (5) An estimate of the total number of Authority: 8 U.S.C. 1101, 1103, 1254a, period. respondents and the amount of time 1254b, 1304, 1356; Pub. L. 107–609; 48 estimated for an average respondent to U.S.C. 1806; Pub. L. 115–218. (a) Order of Supervision. Any alien respond: The estimated total number of ■ 2. Amend § 106.2 by adding paragraph U.S. Immigration and Customs respondents for the information (a)(32)(i)(C) to read as follows: Enforcement releases pursuant to 8 CFR collection Form I–765 is 2,286,000 and 241.4 or 241.13(h), must be temporarily the estimated hour burden per response § 106.2 Fees released on an order of supervision and is 5 hours; the estimated total number (a) * * * must be issued a completed Form I– of respondents for the information (32) * * * 220B, Order of Supervision, specifying collection Form I–765WS is 307,697 and (i) * * * the conditions of release and the the estimated hour burden per response (C) An alien subject to a final order of consequences for failure to comply with is .50 hours; the estimated total number removal and temporarily released on an the conditions of release, including DHS of respondents for the information order of supervision who is applying for authority to take the alien back into collection biometrics is 308,232 and the initial or renewal of employment custody and the potential for criminal estimated hour burden per response is authorization under 8 CFR charges and fines under section 243 of 1.17 hours: the estimated total number 274a.12(c)(18). the Act if the alien fails to comply with of respondents for the information the conditions of release. The Secretary, PART 241—APPREHENSION AND collection passport-style photographs is Director of ICE, or designated delegate DETENTION OF ALIENS ORDERED 2,280,303 and the estimated hour must have the authority to issue an REMOVED burden per response is .50 hours. order of supervision under this section. (6) An estimate of the total public ■ 3. The authority citation for part 241 The order of supervision must specify burden (in hours) associated with the continues to read as follows: the conditions of release including, but collection: The total estimated annual Authority: 5 U.S.C. 301, 552, 552a; 8 not limited to, the following: hour burden associated with this U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, * * * * * collection is 13,084,631hours. 1227, 1228, 1231, 1251, 1253, 1255, 1330, (c) Employment authorization. An (7) An estimate of the total public 1362; 18 U.S.C. 4002, 4103(c)(4); Pub. L. 107– alien who is subject to a final order of burden (in cost) associated with the 296, 116 Stat. 2135 (6 U.S.C. 101, et. seq.); deportation or removal and whom U.S. collection: The estimated total annual 8 CFR part 2. Immigration and Customs Enforcement cost burden associated with this ■ 4. Amend § 241.4 by revising has temporarily released on an order of information collection is $400,838,850. paragraph (j)(3) to read as follows: supervision pursuant to section K. Signature § 241.4 Continued detention of 241(a)(3) of the Act may apply to USCIS inadmissible, criminal, and other aliens for employment authorization pursuant The Acting Secretary of Homeland beyond the removal period. to 8 CFR 274a.12(c)(18) and 274a.13. Security, Chad F. Wolf, having reviewed and approved this document, is * * * * * USCIS will only grant employment delegating the authority to electronically (j) * * * authorization under this paragraph if sign this document to Chad R. Mizelle, (3) Employment authorization. An USCIS determines, in the sole and who is the Senior Official Performing alien who is subject to a final order of unreviewable discretion of USCIS, that the Duties of the General Counsel for deportation or removal and whom U.S. the alien meets the criteria to apply for DHS, for purposes of publication in the Immigration and Customs Enforcement employment authorization under 8 CFR Federal Register. has temporarily released on an order of 274a.12(c)(18) and warrants a favorable supervision pursuant to section exercise of discretion. List of Subjects 241(a)(3) of the Act may apply to USCIS § 241.13 [Amended] 8 CFR Part 106 for employment authorization pursuant to the procedures prescribed under 8 ■ 6. Amend § 241.13(h)(3) by Immigration, user fees. CFR 274a.12(c)(18) and 274a.13. Any ■ a. Removing the words ‘‘The Service’’ 8 CFR Part 241 grant of employment authorization by USCIS is completely discretionary and and adding in its place ‘‘USCIS’’; and Administrative practice and the burden is on the alien to establish ■ b. Removing the reference to procedure, Aliens, Employment, that he or she warrants a favorable paragraph ‘‘§ 241.5(c)’’ and adding in its Immigration, Reporting and exercise of discretion to receive place ‘‘8 CFR 241.5, 274a.12(c)(18), and recordkeeping requirements. employment authorization under this 274a.13’’.

VerDate Sep<11>2014 22:20 Nov 18, 2020 Jkt 253001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP4.SGM 19NOP4 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Proposed Rules 74253

PART 274a—CONTROL OF (D) The alien’s criminal history, (ii) Evidence for Renewal EMPLOYMENT OF ALIENS including but not limited to whether the Applications for Employment alien has been arrested for or convicted Authorization. In addition to the ■ 7. The authority citation for part 274a of any crimes after having been ordered evidence required under paragraph continues to read as follows: removed from the United States and (a)(3)(i) of this section, aliens seeking Authority: 8 U.S.C. 1101, 1103, 1324a; 48 released from custody on an order of renewal of employment authorization U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, supervision; 104 Stat. 890, as amended by Pub. L. 114– based on 8 CFR 274a.12(c)(18) must (iii) For renewal applications only, provide their U.S. employer’s E-Verify 74, 129 Stat. 599. the applicant must also show that he or Company Identification Number (or ■ 8. Amend § 274a.12 by revising she is employed by a U.S. employer client company identification number if paragraphs (a)(10) and (c)(18) to read as who is a participant in good standing in follows: E-Verify. the U.S. employer uses an agent) and the employer’s name as listed in E- § 274a.12 Classes of aliens authorized to * * * * * ■ Verify. An E-Verify employer is a accept employment. 9. Amend § 274a.13 by adding paragraph (a)(3) and revising paragraph participant in good standing if the (a) * * * (b) to read as follows: employer has enrolled in E-Verify with (10) An alien granted withholding of respect to all hiring sites in the United removal under section 241(b)(3) of the § 274a.13 Application for employment States that employ an alien temporarily Act or pursuant to 8 CFR 208.16(c), 8 authorization. released from custody on an order of CFR 1208.16(c), and an alien granted (a) * * * supervision who has received CAT deferral of removal pursuant to 8 (3) Aliens with final orders of removal employment authorization under this CFR 208.17, 1208.17, for the period of or deportation who have been rule, when the alien files their time in that status, as evidenced by an temporarily released from detention on application for employment employment authorization document an order of supervision and whose authorization; is in compliance with all issued by USCIS. removal DHS has determined is requirements of the E-Verify program, * * * * * impracticable because all countries from (c) * * * which DHS has requested travel including but not limited to verifying (18)(i) USCIS, in its sole and documents have affirmatively declined the employment eligibility of newly unreviewable discretion, may grant to issue such documents, and are hired employees at those hiring sites; employment authorization to an alien applying for initial employment and continues to be a participant in who is subject to a final order of authorization or renewal of employment good standing in E-Verify at any time deportation or removal and temporarily authorization based on 8 CFR during which the employer employs an released from custody on an order of 274a.12(c)(18) must file the appropriate alien temporarily released on an order supervision, pursuant to section form designated by USCIS, with the of supervision who has received 241(a)(3) of the Act, who establishes prescribed fee, and in accordance with employment authorization under this economic necessity for employment, the form instructions. rule. and for whom DHS has determined that (i) Evidence for initial applications. (b) Approval of application. If USCIS the alien’s removal is impracticable Aliens who are applying for initial approves an application for employment because all countries from which DHS employment authorization under 8 CFR has requested travel documents have 274a.12(c)(18) must submit the authorization, USCIS will notify the affirmatively declined to issue such following supporting documentation: alien. USCIS will issue an Employment documents. (A) A decision by an immigration Authorization Document (EAD) valid for (ii) USCIS may grant employment judge or the Board of Immigration a specific period and subject to any authorization under 8 CFR Appeals or an administrative removal terms and conditions noted. For aliens 274a.12(c)(18) for a period that USCIS order issued by DHS demonstrating that granted employment authorization determines is appropriate at its the alien is subject to a final order of based on DHS’s determination that the discretion, not to exceed one year. removal or deportation; alien’s removal is impracticable because Factors that USCIS will consider in (B) A completed Form I–765WS, Form all countries from which DHS has determining whether an applicant with I–765 Worksheet or successor form requested travel documents have a final order of removal and temporarily designated by USCIS and in accordance affirmatively declined to issue a travel released on an order of supervision with the form instructions to show document, USCIS may limit the validity warrants a favorable exercise of economic necessity; and period, in its discretion, not to exceed discretion include but are not limited to: (C) A copy of the complete order of one year. (A) Whether the alien is the primary supervision issued by U.S. Immigration provider of economic support for a and Customs Enforcement including a * * * * * dependent U.S. citizen or lawful copy of the complete Personal Report Chad R. Mizelle, Record which reflects that the alien has permanent resident spouse, child(ren), Senior Official Performing the Duties of the been in continuous compliance with the and/or parent; General Counsel,U.S. Department of (B) Whether the alien is complying order of supervision, from the date the Homeland Security. with the order of supervision; alien was temporarily released on an (C) The anticipated length of time order of supervision through the time of [FR Doc. 2020–25473 Filed 11–17–20; 11:15 am] before the alien can be removed from adjudication of the application for BILLING CODE 9111–97–P the United States; and employment authorization.

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