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< Back to current issue of Immigration Daily

 
[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]                         
 
 
========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________
 
This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.
 
The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.
 
========================================================================
 
 
 
[[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]
BILLING CODE 9111-97-P
 


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