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DHS/USCIS RIN: 1615-AC40 Publication ID: Fall 2020 
Title: Employment Authorization for Certain Classes of Aliens With Final Orders of Removal 

On November 19, 2020, DHS proposed to amend its regulations to eliminate eligibility for employment authorization for certain aliens who have final orders of removal but are temporarily released from custody on an order of supervision (OSUP) with limited exceptions. DHS also proposed to include new eligibility requirements and expand the discretionary factors DHS will consider for aliens on OSUP who continue to qualify for employment authorization under the new regulatory framework. This rule would promote the integrity of the immigration system and strengthen protection for U.S. workers.

Agency: Department of Homeland Security(DHS)  Priority: Economically Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Yes  Unfunded Mandates: No 
EO 13771 Designation: Other 
CFR Citation: 8 CFR 274a     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 U.S.C. 1158    8 U.S.C. 1231    8 U.S.C. 1324a   
Legal Deadline:  None

Statement of Need:

DHS needs this amendment to align its discretionary authority to grant employment authorization to aliens ordered removed and temporarily released on orders of supervision with its current immigration enforcement priorities and Executive Orders, which include the prompt removal of aliens who have received a final order of removal from the United States, and the Administration’s efforts to strengthen protections for U.S. workers. DHS has determined that the current employment authorization regulations governing discretionary employment authorization for aliens with final removal orders and released on orders of supervision do not adequately reflect DHS’s enforcement priorities, which include the prompt removal of aliens who have received a final order of removal from the United States, and the Administration’s priorities to strengthen protections for U.S. workers.

Summary of the Legal Basis:

The Immigration and Nationality Act (INA) section 274A(h)(3), 8 U.S.C. 1324a(h)(3), provides the Secretary of Homeland Security (Secretary) general authority to establish discretionary employment authorization categories. Furthermore, INA section 241(a)(7) of the INA, 8 U.S.C. 1231(a)(7), gives the Secretary discretionary authority to make an alien with a final removal order from the United States eligible to receive employment authorization if certain conditions are met. DHS has created regulations codifying the eligibility criteria for the issuance of the discretionary employment authorization to aliens with a final removal order and temporarily released from DHS custody on orders of Supervision, and is proposing modifications.

Anticipated Costs and Benefits:

DHS is currently still considering the specific cost and benefit impacts of the proposed provisions.

Action Date FR Cite
NPRM  11/19/2020  85 FR 74196   
NPRM Comment Period End (for rule only)  12/21/2020 
Final Rule  01/00/2021 
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: Yes 
Agency Contact:
Michael J. McDermott
Division Chief, Security and Public Safety Division, Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive, Suite 4S190,
Camp Springs, MD 20588-0009
Phone:202 721-3000