[Federal Register: August 9, 2010 (Volume 75, Number 152)]
[Rules and Regulations]
[Page 47699-47701]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au10-1]
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Rules and Regulations
Federal Register
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[[Page 47699]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2492-10; DHS Docket No. USCIS-2010-0003]
RIN 1615-AB87
Employment Authorization for Dependents of Foreign Officials
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations governing the employment authorization for dependents of
foreign officials classified as A-1, A-2, G-1, G-3, and G-4
nonimmigrants. This rule expands the list of dependents who are
eligible for employment authorization from spouses, children, and
qualifying sons and daughters of A or G foreign officials to include
any other immediate family member who falls within a category of aliens
designated by the Department of State as qualifying. This change to DHS
regulations provides the Department of State with greater flexibility
when entering into bilateral agreements and arrangements with other
countries that would extend employment authorization to immediate
family members who are recognized as such by the Department of State.
DATES: Effective date: This rule is effective August 9, 2010.
FOR FURTHER INFORMATION CONTACT: Julia C. Kennedy, Adjudications
Officer, Business Employment Services Team, Service Center Operations
Directorate, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2060, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
I. Background
As provided by section 101(a)(15)(A) and (G) of the Immigration and
Nationality Act (INA), certain immediate family members of foreign
officials are eligible for A-1, A-2, G-1, G-3, and G-4 derivative visa
classifications. 8 U.S.C. 1101(a)(15)(A) and (G). Department of State
(DOS) regulations at 22 CFR 41.21(a)(3) define immediate family to
include ``the spouse and unmarried sons and daughters, whether by blood
or adoption, who are not members of some other household, and who will
reside regularly in the household of the principal alien.'' The
``immediate family'' of an A or G principal alien also includes
individuals who:
Are not members of some other household;
Will reside regularly in the household of the principal
alien;
Are recognized as immediate family members of the
principal alien by the sending Government as demonstrated by
eligibility for rights and benefits, such as the issuance of a
diplomatic or official passport, or travel or other allowances; and
Are individually authorized by the Department of State.
This definition of ``immediate family'' reflects an amendment made
by DOS in July 2009 removing the requirement that members of the A or G
principal alien's household, beyond the alien's spouse and dependent
children, must be related to the alien by blood, marriage, or adoption.
74 FR 36112. DOS explained that the purpose of this amendment was to
provide for ``greater flexibility in responding to requests by foreign
governments to issue a diplomatic visa to a person who regularly
resides with and is a member of the household of a qualified principal
alien and is considered by the principal alien and the sending
Government to be a member of the immediate family of the principal
alien.'' Id.
Once in the United States under A or G nonimmigrant status, certain
immediate family members of A and G principal aliens may request
employment authorization from U.S. Citizenship and Immigration Services
(USCIS), after obtaining a favorable determination from DOS and meeting
other eligibility requirements. See 8 CFR 214.2(a)(6) and (g)(6). These
immediate family members are called ``dependents'' under Department of
Homeland Security (DHS) regulations.
Currently, the only dependents of A and G foreign officials listed
in DHS regulations who are eligible to receive employment
authorization, if habitually residing with such officials, include the:
Spouse;
Unmarried children under the age of 21;
Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting
their employment in the United States was signed prior to November 21,
1988, and if such bilateral employment agreement does not specify 23 as
the maximum age for employment of such sons and daughters. The Office
of Protocol of the Department of State shall maintain a listing of
foreign states with which the United States has such bilateral
employment agreements;
Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain or re-establish their own households. DOS
or DHS may require certification(s) necessary to document such mental
or physical disability.
See 8 CFR 214.2(a)(2)(i) to (v) and (g)(2)(i) to (v); 8 CFR
274a.12(c)(1) and (4); see also, e.g., http://www.state.gov/documents/
organization/95030.pdf (Bilateral Agreement between the United States
and Kenya).
The extension of employment authorization to select dependents of
foreign officials is based on reciprocity stemming from formal
bilateral agreements and informal de facto arrangements. See 8 CFR
214.2(a)(3), (a)(5), (g)(3), and (g)(5). A bilateral agreement is a
signed, written agreement which has been negotiated by both the United
States (through DOS) and a foreign country. Such agreements generally
provide that, on the basis of their status, dependents of members of
diplomatic missions and consular posts (``mission members'') in the
United States will be issued employment authorization. In turn, such
agreements generally provide employment authorization for dependents of
United
[[Page 47700]]
States mission members in the foreign country that signed the
agreement.
Informal de facto arrangements develop when DOS determines that a
foreign government is issuing a work permit to a dependent of a U.S.
mission member assigned to duty in that foreign country. Based on that
determination, the U.S. government may provide reciprocal employment
authorization for dependents of mission members of that foreign country
assigned to duty in the United States. A de facto arrangement is based
on current practices and policies rather than mutually-negotiated,
well-defined obligations. However, such arrangements contribute to
making duty in a foreign country more attractive to U.S. mission
members whose dependents wish to work.
While DOS is authorized to enter into bilateral agreements and de
facto arrangements, its authority to negotiate for the employment
authorization of immediate family members of A or G foreign officials
is limited by the definition of ``dependent'' in DHS regulations. DOS
has advised DHS that the limitations in the current regulations are
unnecessary and hinder DOS's ability to recognize, for policy reasons,
a broader spectrum of individuals who may be eligible for employment
authorization.
Determining which individuals are immediate family members of
foreign officials and what benefits they may receive while in the
United States is a matter of foreign policy within the purview of DOS.
Accordingly, DHS, in consultation with DOS, is amending its regulations
to be more flexible and allow DOS the necessary deference to determine
which immediate family members of foreign officials are qualifying
dependents for purposes of employment authorization.
II. Changes to the Definition of ``Dependent''
This final rule amends the definitions of A and G dependents by
adding a new category of dependents who may be eligible for employment
authorization. This new category includes any immediate family member
of an A or G foreign official with A or G nonimmigrant status who is
covered by DOS regulations at 22 CFR 41.21(a)(3)(i) to (iv) and falls
within a category of aliens recognized by the DOS as qualifying
dependents. See new 8 CFR 214.2(a)(2)(vi) and (g)(2)(vi) (cross-
referencing 22 CFR 41.21(a)(3)). This amendment means that, in addition
to spouses, children, and unmarried sons and daughters of A and G
principal aliens, other categories of immediate family members in the
United States in A or G nonimmigrant status could be eligible for
employment authorization, as determined by DOS. Qualifying dependents
must fall within a bilateral work agreement or de facto arrangement,
listed on DOS's Web site at http://www.state.gov/m/dghr/flo/c24338.htm.
This final rule also makes conforming amendments to the employment
authorization regulations at 8 CFR 274a.12(c)(1) and (4) governing
dependents of relevant A and G visa holders. Specifically, the
amendments remove references to the spouses and children of A and G
principals.
III. Regulatory Requirements
A. Administrative Procedure Act
This final rule is exempt from the rulemaking provisions of 5
U.S.C. 553 as a foreign affairs function of the United States. This
rulemaking amends DHS regulations to extend eligibility for employment
authorization to categories of dependents of A or G foreign officials
in A or G nonimmigrant status, as determined by DOS, beyond the spouses
and dependent children of such officials. This amendment will provide
greater flexibility to DOS when negotiating bilateral agreements and
arrangements with foreign governments regarding employment
authorization for dependents of foreign officials. Specifically, DOS
will be better able to respond to foreign government requests to issue
diplomatic visas and extend employment authorization to persons
residing with A and G principal aliens and considered by the sending
Government to be immediate family members. Since this final rule
involves U.S. foreign policy and bilateral agreements and arrangements,
it is considered a foreign affairs function of the United States and is
exempt from notice and comment rulemaking and delayed effective date
requirements under 5 U.S.C. 553.
Further, DHS maintains that it is important to implement this rule
as quickly as possible to allow U.S. foreign officials currently being
assigned to overseas positions to obtain reciprocal recognition and
benefits for immediate family members as defined under the revised
Department of State regulations. We have been advised that immediate
family members of U.S. foreign officials have been denied work
authorization overseas. Delay in implementation of this regulation
would have the definitive, undesirable consequence of the continued
denial of work authorization for immediate family members of U.S.
foreign officials in certain foreign countries.
Accordingly, DHS is not required to provide public notice and an
opportunity to comment before implementing the requirements under this
final rule.
B. Regulatory Flexibility Act
Because this final rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth at sections 603 and 604 of
the Regulatory Flexibility Act, 5 U.S.C. 603 and 604. Consequently, no
regulatory flexibility analysis has been prepared. DHS does note that
this regulation does not directly regulate any small entities, as
defined in 5 U.S.C. 601(6).
C. The Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign based companies in domestic and import markets.
E. Executive Order 12866
Section 3(d)(2) of Executive Order 12866 provides that the
Executive Order does not apply to a proposed regulation that involves a
foreign affairs function of the United States, and thus it does not
apply to this rule. As previously discussed in more detail in the
``Administrative Procedure Act'' section, this rule will provide DOS
with greater flexibility when negotiating with foreign governments
regarding employment authorization for certain dependents of A and G
principal aliens.
F. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the
[[Page 47701]]
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Executive Order 12988: Civil Justice Reform
This final rule meets the relevant standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.,
all Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule will require some minor edits to the Form
I-566, Inter-Agency Record of Individual Requesting Change/Adjustment
to or From A or G Status; or Requesting A, G, or NATO Dependent
Employment Authorization, (currently approved OMB Control No. 1615-
0027). Accordingly, USCIS has submitted an OMB 83-C, Correction
Worksheet, to OMB for review and approval for the minor edits to the
form and instructions.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, and Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of
the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; Title VII of Public Law 110-229; 8 CFR part 2.
0
2. Section 214.2 is amended by:
0
a. Removing the ``.'' at the end of paragraph (a)(2)(v) and adding ``;
or'' in its place;
0
b. Adding a new paragraph (a)(2)(vi);
0
c. Removing the word ``and'' at the end of paragraph (g)(2)(iv);
0
d. Removing the ``.'' at the end of paragraph (g)(2)(v) and adding ``;
or'' in its place; and by
0
e. Adding a new paragraph (g)(2)(vi).
The additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(a) * * *
(2) * * *
(vi) An immediate family member of an A-1 or A-2 principal alien
described in 22 CFR 41.21(a)(3)(i) to (iv) with A-1 or A-2 nonimmigrant
status, who falls within a category of aliens recognized by the
Department of State as qualifying dependents.
* * * * *
(g) * * *
(2) * * *
(vi) An immediate family member of a G-1, G-3, or G-4 principal
alien described in 22 CFR 41.21(a)(3)(i) to (iv) with G-1, G-3, or G-4
nonimmigrant status who falls within a category of aliens designated by
the Department of State as qualifying dependents.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Pub. L.
110-229; 8 CFR part 2
0
4. Section 274a.12 is amended by revising paragraphs (c)(1) and (c)(4)
to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(1) An alien dependent of a foreign government official A-1 or A-2
principal alien defined in 8 CFR 214.2(a)(2), and who presents a fully
executed Form I-566 bearing the endorsement of an authorized
representative of the Department of State;
* * * * *
(4) An alien dependent of an officer of, representative to, or
employee of an international organization G-1, G-3, or G-4 principal
alien defined in 8 CFR 214.2(g)(2), and who presents a fully executed
Form I-566 bearing the endorsement of an authorized representative of
the Department of State;
* * * * *
Janet Napolitano,
Secretary.
[FR Doc. 2010-19620 Filed 8-6-10; 8:45 am]
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