[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Rules and Regulations]
[Pages 63593-63597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30480]
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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.
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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.
[[Page 63595]]
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:
a. Revising the reference to ``section 244A'' to read ``section
244'' in the definition for Felony;
b. Revising the reference to ``section 244A(c)'' to read ``section
244'' in the definition for Prima Facie; and by
c. 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
[[Page 63596]]
(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 filed an 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:
a. Revising the term ``designated state'' to read ``designated
foreign state'' in paragraph (a)(1) second sentence of the introductory
text;
b. Revising the reference to section 244A(c)(2) to read section
244(c)(2) in paragraph (a)(3) heading; and by
c. 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:
a. Revising the term district director to read director, in the
heading for paragraph (c);
b. Revising the term ``district director'' to read ``director''
wherever that term appears in paragraph (c) introductory text;
c. 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);
d. Revising the term ``district director's'' to read ``director's''
in paragraph (c)(2);
e. Revising the reference to ``240.11 and 240.18'' to read
``240.11, and 244.18'' in paragraph (c)(2);
f. Revising the term ``designated state'' to read ``designated
foreign state'' in the last sentence of paragraph (e)(1) introductory
text;
g. Revising the reference to ``Sec. 240.13'' to read
``Sec. 244.13'' in paragraph (e)(2);
h. Revising the term ``designated state'' to read ``designated
foreign state'' in paragraph (f)(2) introductory text;
i. Revising the reference to ``Sec. 240.15'' to read
``Sec. 244.15'' in paragraph (f)(2)(iii); and by
j. 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:
a. Revising the term ``state's'' to read ``foreign state's'' in
paragraph (a);
b. Revising the reference to ``Sec. 240.14'' to read
``Sec. 244.14'' in paragraph (b); and by
c. 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:
a. 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;
b. Revising the reference to ``Sec. 240.15'' to read
``Sec. 244.15'' in the last sentence in paragraph (a)(2);
c. Revising the term district director to read director in the
heading of paragraph (b);
d. 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);
e. 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
f. 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:
a. 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
b. 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. 98-30480 Filed 11-13-98; 8:45 am]
BILLING CODE 4410-10-M
