Immigration: Aliens— Temporary protected status, registration deadlines exception; persons in valid immigrant or nonimmigrant status during initial registration period,

[Federal Register: November 16, 1998 (Volume 63, Number 220)]

[Rules and Regulations]

[Page 63593-63597]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16no98-3]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 244, 274a, and 299

[INS No. 1608-93]

RIN 1115-AC30

Temporary Protected Status, Exception to Registration Deadlines

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations by providing additional exceptions to the deadlines for initial registration for Temporary Protected Status (TPS). Eligible persons who did not register for TPS because they are or were in a status or a condition that made it unnecessary or discouraged registration during the initial registration period may now apply for late registration. This rule also makes conforming changes to reflect the redesignation by the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) of section 240 of

[[Page 63594]]

the Immigration and Nationality Act (Act) as section 244, and makes other minor conforming changes to reflect current Service procedures.

DATES: This rule is effective November 16, 1998.

FOR FURTHER INFORMATION CONTACT: Pearl Chang, Chief, Residence and Status, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington DC 20536, Telephone: (202) 514-5014.

SUPPLEMENTARY INFORMATION: Temporary Protected Status (TPS), as provided for by section 244 of the Act, affords temporary protection in the United States to persons of designated foreign states that are experiencing ongoing civil strife, environmental disaster, or certain other extraordinary and temporary conditions. As originally promulgated in 1991, the regulations at 8 CFR part 240 limited TPS registration to aliens who applied during the registration period established by Federal Register notice initially designating a particular country for TPS. This formulation left otherwise eligible aliens who, for one reason or another, failed to register for TPS with the prospect of having to return to their home countries while the conditions precipitating the TPS designation remained. Many such aliens were maintaining an immigration status or pursuing a pending immigration application which they hoped or assumed would allow them to remain legally in the United States permanently or at least until the conditions in their home countries improved.

On November 5, 1993, the Service published an interim rule in the Federal Register at 58 FR 58935 which addressed this problem with respect to nonimmigrants and immigrants by creating an exception to the initial registration deadlines for TPS. This final rule broadens that exception to persons otherwise eligible for TPS who are or were in a status or a condition that made it unnecessary or discouraged registration during the initial registration period, including parolees and pending asylum applicants.

Specifically, the exception in the interim rule was limited to otherwise eligible aliens who are or were in any valid nonimmigrant or immigrant status on the date their country was designated for TPS, and who did not register during the initial registration period (usually comprising the entire first period of designation). Pursuant to the interim rule, such persons may apply for TPS during any extension of the designation, provided the application is submitted within 30 days of the expiration of the previous nonimmigrant or immigrant status, or by February 3, 1994, (90 days after the effective date of that rule), whichever is later. The interim rule also provided a finding of lawful status as a nonimmigrant for those persons who fell out of status between the end of the first period of registration and the effective date of that rule. 8 CFR 244.10(f)(2)(v). (N.B. IIRIRA amended section 212(a)(9)(B) of the Act as of April 1, 1997, to define ``unlawfully present'' such that an alien is present in the United States after the expiration of a period of stay authorized by the Attorney General or present in the United States without being admitted or paroled). This definition applies only for purposes of 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act. Nevertheless, those aliens who file for TPS after April 1, 1997, and within 30 days of the expiration of their previous status will not accrue time in unlawful presence after their previous status expires and before they register for TPS. This finding of nonimmigrant status will continue in effect until such time as the Service may issue a final (or interim) regulation implementing a comprehensive definition of unlawful presence.)

Discussion of Comments

The comment period for the interim rule closed on December 6, 1993. The following is a discussion of those comments and the Service's response.

The Service received five comments to the interim rule. All commenters were supportive of allowing late initial TPS registration under certain circumstances. Several commenters, however, urged that the eligibility for late registration be extended to other groups. The Service agrees with the majority of those commenters that applicants for asylum and minors whose parents registered for TPS, but did not register any or all of their children, should be eligible for such late initial registration. In addition, the Service believes that the following groups should also be eligible: (1) Those with an application for nonimmigrant status, resident status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal; and (2) those present subsequent to parole under section 212(d)(5) of the Act.

The Service does not, however, agree with the commenter who requested that DED Salvadorans should be eligible for late registration because TPS for El Salvador has already been terminated.

The Service does not agree with the request that those who do not meet the basic eligibility requirements, including physical presence in the United States by the date specified in the TPS Federal Register notice, should be eligible for initial late registration.

Finally, the Service agrees with both commenters who suggested that the application period for initial late registration be extended beyond the 30 days specified in the interim rule to provide additional time for the distribution of information regarding TPS to the affected aliens. This final rule extends the late initial registration period to 60 days from the date of the TPS notice's publication in the Federal Register for all grandfathered (otherwise ineligible) applicants. The final rule also provides 60 days to register for TPS for those who become eligible for late registration.

In addition, the final rule provides that those persons who would otherwise have been eligible for TPS during the first period of registration who: (1) Were in a valid status during that period of registration; (2) fell out of valid status during any subsequent period of registration; and (3) were prevented from registering for TPS by the regulation in effect at the time, will be held to have maintained a valid status during that period.

Persons covered by this exception must meet all other requirements of TPS including presence in the United States at the time the foreign state in question was designated for TPS. This rule is not intended to extend protection to persons who arrived in the United States, whether legally or illegally, after the designation was made, nor is it intended to cover persons who were not in valid immigrant or nonimmigrant status during the initial registration period.

Technical Amendments

This rule also changes all references to section 240 of the Act to section 244 as required by IIRIRA. Finally, this rule modifies several definitions within section 244 to better comport with the rest of 8 CFR. Specifically, the definition of Act is removed because it duplicates the definition at 8 CFR 1.1(b) which controls. The term state is changed to foreign state (although the definition remains the same) for clarity. The definition of charging document is revised to comport with the definition of that term in Sec. 3.13.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Commissioner of the Immigration and Naturalization Service certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.

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This rule allows certain aliens to apply for TPS; it has no effect on small entities as that term is defined in 5 U.S.C. 601(6).

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Executive Order 12612

The regulation adopted herein will not have 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, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. 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 United States-based companies to compete with foreign- based companies in domestic and export markets.

Executive Order 12988 Civil Justice Reform

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.

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 1 year, and 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.

Lists of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 244

Administrative practice and procedure, Immigration, Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration.

Accordingly, the interim rule amending 8 CFR parts 103, 240, and 299 (part 240 at the time of the interim rule has since been redesignated as part 244) which was published at 58 FR 58935 on November 5, 1993, is adopted as a final rule with the following changes and part 274a is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS

1. The authority citation for part 103 continues to read as follows:

   Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

   Sec. 103.1 [Amended]

2. Section 103.1(f)(3)(iii)(HH) is amended by revising the reference to ``part 240'' to read ``part 244.''

   Sec. 103.7 [Amended]

3. In Sec. 103.7(b)(1), the entry for ``Form EOIR-40'' is amended by revising the reference to ``section 244 of the Act'' to read ``section 244 of the Act as it existed prior to April 1, 1997.'' Further, in Sec. 103.7(b)(1), the entry for ``Form I-821'' is amended by revising the reference to ``section 244A of the Act'' to read ``section 244 of the Act as amended by section 308(a)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996''.

   Sec. 103.12 [Amended]

4. In Sec. 103.12 paragraph (a)(4)(ii) is amended by revising the reference to ``section 244A of the Act'' to read ``section 244 of the Act''.

   PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED FOREIGN STATES

5. The authority citation for part 244 continues to read as follows:

   Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

6. Section 244.1 is amended by removing the definitions of the terms Act and State, revising the definition of Charging document, and adding the definition of Foreign state immediately after the definition of Felony, to read as follows:

   Sec. 244.1 Definitions.

   * * * * *

   Charging document means the written instrument which initiates a proceeding before an Immigration Judge. For proceedings initiated prior to April 1, 1997, these documents include an Order to Show Cause, a Notice to Applicant for Admission Detained for Hearing before Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. For proceedings initiated after April 1, 1997, these documents include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. * * * * *

   Foreign state means any foreign country or part thereof as designated by the Attorney General pursuant to section 244 of the Act. * * * * *

   Sec. 244.1 [Amended]

7. Section 244.1 is amended by:

   1. Revising the reference to ``section 244A'' to read ``section 244'' in the definition for Felony;

   2. Revising the reference to ``section 244A(c)'' to read ``section 244'' in the definition for Prima Facie; and by

   3. Revising the reference to ``section 244A(b)'' to read ``section 244(b)'' in the definition for Register.

8. Section 244.2 is revised to read as follows:

   Sec. 244.2 Eligibility.

   Except as provided in Secs. 244.3 and 244.4, an alien may in the discretion of the director be granted Temporary Protected Status if the alien establishes that he or she:

   (a) Is a national, as defined in section 101(a)(21) of the Act, of a foreign state designated under section 244(b) of the Act;

   (b) Has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state;

   (c) Has continuously resided in the United States since such date as the Attorney General may designate;

   (d) Is admissible as an immigrant except as provided under Sec. 244.3;

   (e) Is not ineligible under Sec. 244.4; and

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   (f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the Federal Register, or

   (2) During any subsequent extension of such designation if at the time of the initial registration period:

   (i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;

   (ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;

   (iii) The applicant is a parolee or has a pending request for reparole; or

   (iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

   (3) Eligibility for late initial registration in a currently designated foreign state shall also continue until January 15, 1999, for any applicant who would have been eligible to apply previously if paragraph (f)(2) of this section as revised had been in effect before November 16, 1998.

   (g) Has filedan application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section.

   Sec. 244.4 [Amended]

9. In Sec. 244.4, paragraph (a) is amended by revising the reference to ``Sec. 240.1'' to read ``Sec. 244.1''.

   Sec. 244.5 [Amended]

10. In Sec. 244.5, paragraph (a) is amended in the first sentence by revising the term ``state'' to read ``foreign state'', and by revising the reference to ``section 244A'' to read ``section 244''. Paragraph (a) is further amended by revising the reference to ``Sec. 240.13'' to read ``Sec. 244.13'' in the next to last sentence.

11. In Sec. 244.5, paragraph (b) is amended in the last sentence by revising the reference to ``Sec. 240.13'' to read ``Sec. 244.13''.

    Sec. 244.6 [Amended]

12. Section 244.6 is amended in the last sentence by revising the reference to ``Sec. 240.9'' to read ``Sec. 244.9''.

13. Section 244.7 is revised to read as follows:

    Sec. 244.7 Filing the application.

    (a) An application for Temporary Protected Status shall be filed with the director having jurisdiction over the applicant's place of residence.

    (b) An application for Temporary Protected Status must be filed during the registration period established by the Attorney General, except in the case of an alien described in Sec. 244.2(f)(2).

    (c) Each applicant must pay a fee, as determined at the time of the designation of the foreign state, except as provided in Sec. 244.5(a).

    (d) If the alien has a pending deportation or exclusion proceeding before the immigration judge or Board of Immigration Appeals at the time a foreign state is designated under section 244(b) of the Act, the alien shall be given written notice concerning Temporary Protected Status. Such alien shall have the opportunity to submit an application for Temporary Protected Status to the director under paragraph (a) of this section during the published registration period unless the basis of the charging document, if established, would render the alien ineligible for Temporary Protected Status under Sec. 244.3(c) or Sec. 244.4. Eligibility for Temporary Protected Status in the latter instance shall be decided by the Executive Office for Immigration Review during such proceedings.

    Sec. 244.8 [Amended]

14. Section 244.8 is amended in the last sentence by revising the term ``district director'' to read ``director''.

    Sec. 244.9 [Amended]

15. Section 244.9 is amended by:

    1. Revising the term ``designated state'' to read ``designated foreign state'' in paragraph (a)(1) second sentence of the introductory text;

    2. Revising the reference to section 244A(c)(2) to read section 244(c)(2) in paragraph (a)(3) heading; and by

    3. Revising the reference to ``Sec. 240.2(f)(2)'' to read ``Sec. 244.2(f)(2)'' in paragraph (a)(4).

    Sec. 244.10 [Amended]

16. In Sec. 244.10, paragraph (a) is amended by revising the reference to ``Sec. 240.5'' to read ``Sec. 244.5''.

17. In Sec. 244.10, paragraph (b) is amended by revising the reference to ``Secs. 240.2, 240.3, and 240.4'' to read ``Secs. 244.2, 244.3, and 244.4''.

18. Section 244.10 is further amended by:

    1. Revising the term district director to read director, in the heading for paragraph (c);

    2. Revising the term ``district director'' to read ``director'' wherever that term appears in paragraph (c) introductory text;

    3. Revising the phrase ``under Sec. 240.4 or inadmissable under Sec. 240.3(c)'' to read ``under Sec. 244.4 or inadmissible under Sec. 244.3(c)'' in paragraph (c)(1);

    4. Revising the term ``district director's'' to read ``director's'' in paragraph (c)(2);

    5. Revising the reference to ``240.11 and 240.18'' to read ``240.11, and 244.18'' in paragraph (c)(2);

    6. Revising the term ``designated state'' to read ``designated foreign state'' in the last sentence of paragraph (e)(1) introductory text;

    7. Revising the reference to ``Sec. 240.13'' to read ``Sec. 244.13'' in paragraph (e)(2);

    8. Revising the term ``designated state'' to read ``designated foreign state'' in paragraph (f)(2) introductory text;

    9. Revising the reference to ``Sec. 240.15'' to read ``Sec. 244.15'' in paragraph (f)(2)(iii); and by

    10. Revising the reference to ``Sec. 240.2(f)(2)'' to read ``Sec. 244.2(f)(2)'' in paragraph (f)(2)(v).

    Sec. 244.11 [Amended]

19. Section 244.11 is amended in the last sentence by revising the reference to ``Sec. 240.19'' to read ``Sec. 244.19'' and by revising the term ``state's'' to read ``foreign state's''.

    Sec. 244.12 [Amended]

20. Section 244.12 is amended by:

    1. Revising the term ``state's'' to read ``foreign state's'' in paragraph (a);

    2. Revising the reference to ``Sec. 240.14'' to read ``Sec. 244.14'' in paragraph (b); and by

    3. Revising the reference to ``Sec. 240.18(b)'' to read ``Sec. 244.18(b)'' in paragraph (d).

    Sec. 244.13 [Amended]

21. In Sec. 244.13, paragraph (b) is amended by revising the term ``state's'' to read ``foreign state's'', and by revising the reference to ``section 244A(b)(3)'' to read ``section 244(b)(3)''.

    Sec. 244.14 [Amended]

22. Section 244.14 is amended by:

    1. Revising the term district director to read director in the heading in paragraph (a), revising the term ``district director'' to read ``director'', and by revising the reference to ``section 244A'' to read ``section 244'' in paragraph (a) introductory text;

    2. Revising the reference to ``Sec. 240.15'' to read ``Sec. 244.15'' in the last sentence in paragraph (a)(2);

    3. Revising the term district director to read director in the heading of paragraph (b);

    4. Revising the phrase ``section 236 or section 242 of the Act'' to read ``sections 235, 236, 237, 238, 240, or 241 of the Act'' in paragraph (b)(2);

    5. Revising the phrase ``Sec. 240.4 or inadmissible under Sec. 240.3(c)'' to read ``Sec. 244.4 or inadmissible under

       [[Page 63597]]

       Sec. 244.3(c)'' in the first sentence in paragraph (b)(3); and by

    6. Revising the reference to ``Sec. 240.10(d)'' to read ``Sec. 244.10(d)'' in paragraph (c).

       Sec. 244.15 [Amended]

23. In Sec. 244.15, paragraph (a) is amended in the first sentence by revising the reference to ``section 244A(c)(3)(B)'' to read ``section 244(c)(3)(B)''.

    Sec. 244.17 [Amended]

24. In Sec. 244.17, paragraph (a) is amended in the second sentence by revising the term ``countries'' to read ``foreign states'' and by revising the reference to ``section 244A(b)'' to read ``section 244(b)''.

    Sec. 244.18 [Amended]

25. Section 244.18 is amended by:

    1. Revising the reference to Secs. 240.3(c) and 240.4'' to read ``Secs. 244.3(c) and 244.4'' in the first sentence of paragraph (a); and by

    2. Revising the reference to ``district director'' to read ``director'' wherever it appears in paragraph (c).

    Sec. 244.19 [Amended]

26. Section 244.19 is amended in the first sentence by revising the term ``state'' to read ``foreign state'', and by changing the term ``state's'' to read ``foreign state's'' in the last sentence.

    PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

27. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a, and 8 CFR part 2.

    Sec. 274a.12 [Amended]

28. In Sec. 274a.12 paragraph (c)(19) is amended by revising the reference to ``section 244A'' to read ``section 244'' and by revising the reference to ``part 240'' to read ``part 244''.

    Dated: June 15, 1998. Doris Meissner, Commissioner, Immigration and Naturalization Service.

    [FR Doc. 98-30480Filed11-13-98; 8:45 am]

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