Daily Rules, Proposed Rules, and Notices of the Federal Government
Section 504 of Title 10, U.S. Code, provides citizenship and immigration status eligibility criteria for enlistment in the Armed Forces. The Armed Forces are defined under 10 U.S.C. 101(a)(4) to mean only the U.S. Army, Navy, Air Force, Marine Corps, and Coast Guard. Under section 504, only citizens and noncitizen nationals of the United States; lawful permanent resident aliens; and certain nationals of the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau who are admissible as nonimmigrants under the Compacts of Free Association with those nations, are eligible to enlist in the Armed Forces.
Section 274A of the Immigration and Nationality Act (INA), 8 U.S.C. 1324a, prohibits the employment of persons who are not authorized to be employed under U.S. immigration laws, and requires employers to verify the identity and employment eligibility of each individual they hire for employment in the United States. Under DHS regulations governing employment authorization (8 CFR 274a.12) and employment eligibility verification (8 CFR 274a.2), aliens who are lawfully enlisted in the Armed Forces under 10 U.S.C. 504(b)(1) are also employment authorized. DHS regulations, however, do not currently authorize employment for aliens that enlist in the Armed Forces under section 504(b)(2) following a determination by a Secretary of one of the Armed Forces that the enlistment of such aliens is vital to the national interest. This final rule closes that gap and extends employment authorization to any alien lawfully enlisted in the Armed Forces under 10 U.S.C. 504. In order to enable certain aliens who are not otherwise employment authorized to complete the enlistment process, this final rule authorizes an alien to accept employment with a specific Armed Force prior to completing the enlistment process. An alien is so authorized when the Secretary of an Armed Force determines that the alien's enlistment would be vital to the national interest.
This final rule provides that any person lawfully enlisted in the Armed Forces under the authority of 10 U.S.C. 504 has employer-specific work authorization to serve in the Armed Forces.
In short, the final rule provides that if an Armed Force lawfully enlists any alien under the authority of 10 U.S.C. 504 who is not otherwise work authorized, the alien enlisted will be considered by DHS to have work authorization for the purpose of, and limited to, that enlistment. The final rule's reference to lawful enlistment under 10 U.S.C. 504 is meant to ensure that it is not construed to provide work authorization to any alien who is falsely or fraudulently enlisted in the Armed Forces through error or misrepresentation of a qualifying section 504 status. The rule also provides the same limited employment authorization to certain aliens prior to their enlistment in the Armed Forces. So that these individuals may complete the enlistment process, they are provided with this limited employment authorization when it is determined that their enlistment would be vital to the national interest under 10 U.S.C. 504.
The final rule provides work authorization, but does not confer nonimmigrant or other immigration status to members of the Armed Forces by virtue of their enlistment. DHS notes, however, that under section 284 of the INA, 8 U.S.C. 1354, and 8 CFR 235.1(c), alien members of the Armed Forces
This final rule provides work authorization to serve in the Armed Forces as an alien, during which time the alien may apply for naturalization. The rule does not authorize employment for any employer other than the Armed Forces or for any purpose other than lawful enlistment in one of the Armed Forces.
Form I-9 has three categories of documents that may be accepted, alone or in combination, by employers for employment eligibility verification:
The documents authorized for the purposes of verifying identity and employment eligibility on the Form I-9 do not adequately address documents that are available to aliens enlisted in the military. In particular, aliens from the Pacific Island nations described in section 10 U.S.C. 504(b)(1)(C) who are enlisted abroad, or aliens enlisted under section 10 U.S.C. 504(b)(2), may not have the appropriate documentation required on the Form I-9. This final rule provides an additional option that an Armed Force may accept to verify both employment eligibility and identity under List A of the Form I-9. In the case of an individual lawfully enlisted for military service only, a military identification card issued by the Armed Forces may now serve as a List A document.
DHS has determined that in the limited situation of verifying employment authorization for military enlistment, which includes a background check to verify citizenship and immigration status, it is appropriate to designate the military identification card as a List A document for Form I-9 purposes. DHS has determined that military identification cards contain a photograph and other personal identification sufficient for verification purposes, and that, along with the background check, they contain adequate security features, thus complying with the statutory requirements in section 274A(b)(1)(B)(ii) of the INA, 8 U.S.C. 1324a(b)(1)(B)(ii), for designating List A documents. The final rule does not change or modify the Form I-9 document list for private or public employers other than the Armed Forces; private or public employers other than the Armed Forces may not accept a military identification card as a List A document to satisfy documentation requirements of the Form I-9. For other employers, a military identification card may continue to be accepted only as a List B identification document as currently provided in 8 CFR 274a.2(b)(1)(v)(B)(1)(iv).
This rule solely addresses military personnel matters relating to the enlistment of members of the Armed Forces. This rule therefore is exempt from notice and comment rulemaking procedures under the military function exception set forth in section 553(a)(1) of the Administrative Procedure Act (APA), 5 U.S.C. 553(a)(1). For the same reason, this rule is effective immediately upon publication in the
The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBRFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). RFA analysis is not required when a rule is exempt from notice and comment rulemaking requirements under the Administrative Procedure Act.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Public Law 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the UMRA is any provision in a Federal agency regulation that will impose an enforceable duty upon state, local, and tribal governments, in the aggregate, of $100 million (adjusted annually for inflation) in any one year. This rule would not result in such an expenditure.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.
Section 3(d)(2) of Executive Order 12866 provides that regulations that pertain to a military function of the United States are not subject to its review requirements. Accordingly, this final rule has not been reviewed by the Office of Management and Budget.
This rule would have no substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this
This final rule does not modify any collection of information as defined in 44 U.S.C. 3502(3), and it will not require a revision to the Form I-9 (OMB Control Number 1615-0047).
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
The additions read as follows:
(b) * * *
(1) * * *
(v) * * *
(A) * * *
(d) An alien lawfully enlisted in one of the Armed Forces, or whose enlistment the Secretary with jurisdiction over such Armed Force has determined would be vital to the national interest under 10 U.S.C. 504(b)(2), is authorized to be employed by that Armed Force in military service, if such employment is not otherwise authorized under this section and the immigration laws. An alien described in this section is not issued an employment authorization document.