04-24607. Extension of the Designation of Temporary Protected Status for Nicaragua; Automatic Extension of Employment Authorization Documentation for Nicaragua TPS Beneficiaries

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

The Temporary Protected Status (TPS) designation for Nicaragua will expire on January 5, 2005. This notice extends the designation of Nicaragua for 18 months, until July 5, 2006, and sets forth procedures necessary for nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) for the additional 18-month period. Re-registration is limited to persons who registered under the initial designation (which was announced on January 5, 1999) and also timely re-registered under each subsequent extension of the designation. Eligible aliens must also have maintained continuous physical presence in the United States since January 5, 1999, and continuous residence in the United States since December 30, 1998. Certain nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

Given the large number of Nicaraguans affected by this notice, the Department of Homeland Security (DHS) recognizes that many re-registrants may not receive their new EADs until after their current EADs expire on January 5, 2005. Accordingly, this notice automatically extends the validity of EADs issued under Nicaragua TPS for six months until July 5, 2005, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended.

DATES:

Effective Dates: The extension of TPS for Nicaragua is effective January 5, 2005, and will remain in effect until July 5, 2006. The 60-day re-registration period begins November 3, 2004 and will remain in effect until January 3, 2005.

FOR FURTHER INFORMATION CONTACT:

Colleen Cook, Residence and Status Services, Office of Programs and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., ULLICO Building, 3rd Floor, Washington, DC 20529, telephone [phone].

SUPPLEMENTARY INFORMATION:

What Authority Does the Secretary of DHS Have To Extend the Designation of TPS for Nicaragua

On March 1, 2003, the functions of the Immigration and Naturalization Service (INS) transferred from the Department of Justice (DOJ) to DHS pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities for administering TPS held by INS were transferred to U.S. Citizenship and Immigration Services (USCIS).

Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state (or part thereof) for TPS. 8 U.S.C. 1254a(b)(1). The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1).

Section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the expiration of the TPS designation or any extension thereof, the conditions in a foreign state designated for TPS to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of the TPS designation. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines that the foreign state no longer meets the conditions for TPS designation, he shall terminate the designation, as provided in section 244(b)(3)(B) of the Act. 8 U.S.C. 1254a(b)(3)(B). Finally, if the Secretary of DHS does not determine that a foreign state (or part thereof) no longer meets the conditions for designation at least 60 days before the designation is due to end, section 244(b)(3)(C) of the Act provides for an automatic extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary of DHS, a period of 12 or 18 months). 8 U.S.C. 1254a(b)(3)(C).

Why Did the Secretary of DHS Decide To Extend the TPS Designation for Nicaragua?

On January 5, 1999, notice was published in the Federal Register at 64 FR 524, designating Nicaragua for TPS due to the devastation resulting from Hurricane Mitch. The designation of Nicaragua for TPS subsequently has been subsequently extended four times, with notice of such determinations published in the Federal Register (65 FR 30440; 66 FR 23271; 67 FR 2245; 68 FR 23748). The most recent notice was published in the Federal Register on May 5, 2003, and it is due to end on January 5, 2005.

Since the date of the most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Nicaragua. Due to continued reconstruction of infrastructure damaged by Hurricane Mitch, the Secretary of DHS has determined that an 18-month extension of the TPS designation is warranted because Nicaragua remains unable, temporarily, to handle adequately the return of its nations. 8 U.S.C. 1254a(b)(1)(B).

DOS notes that “the conditions that initially gave rise to the designation continue to exist.” (DOS Recommendation (August 31, 2004)). The USCIS Resource Information Center (RIC) reports that the Spanish organization Infancia sin Fronteras continues to provide food, medical care, and educational training to 12,000 children affected by Hurricane Mitch. (RIC Report (August 2004)).

Reconstruction of infrastructure damaged by Hurricane Mitch continues. There is a shortage of potable water in the northwestern department of Chinandega, one of the areas hardest hit by Hurricane Mitch. Id. The Government of Canada has promised funding to build wells in three communities to address the lack of potable water. Id. Also in Chinandega, continued erosion related to Hurricane Mitch resulted in damage to 60% and loss of 4-7% of arable land. Id. There are continued efforts to lessen the risk of floods and mudslides in forty communities still vulnerable in the wake of Hurricane Mitch via efforts such as emergency drilling. Id. Nationwide, reconstruction of roads damaged by Mitch has been concentrated in urban areas. Id. However, roads in the Central Rural and Atlantic Rural regions have deteriorated. Id.

Based upon this review, the Secretary of DHS, after consultation with appropriate Government agencies, finds that the conditions that prompted designation of Nicaragua for TPS continue to be met. 8 U.S.C. 1254a(b)(3)(A). There continues to be a substantial, but temporary, disruption in living conditions in Nicaragua as the result of an environmental disaster, and Nicaragua continues to be unable, temporarily to handle adequately the return of its nationals. 8 U.S.C. 1254a(b)(1)(B). On the basis of these findings, the Secretary of DHS concludes that the TPS designation for Nicaragua should be extended for an additional 18-month period. 8 U.S.C. 1254a(b)(3)(C).

If I Currently Have TPS Through the Designation of Nicaragua for TPS, Do I Still Register for TPS?

Yes. If you already have received TPS benefits through the designation of Nicaragua for TPS, your benefits will expire on January 5, 2005. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain TPS benefits through July 5, 2006. TPS benefits include temporary protection against removal from the United States, as well as employment authorization, during the TPS designation period. 8 U.S.C. 1254a(a)(1).

If I Am Currently Registered for TPS, How Do I Re-Register for an Extension?

All persons previously granted TPS under the designation of Nicaragua who wish to maintain such status must apply for an extension by filing the following: (1) Form I-821, Application for Temporary Protected Status; (2) Form I-765, Application for Employment Authorization (see the chart below to determine whether you must submit the one hundred and seventy-five dollar ($175) filing fee with Form I 765); and (3) a biometric services fee of seventy dollars ($70) if you are 14 or older, or if you are under 14 and requesting an EAD. The biometric services fee cannot be waived. 8 CFR. 103.2(e)(i), (iii). Unlike previous registration periods, TPS applicants need not submit photographs with the TPS application because a photograph will be taken when the alien appears at an Application Support Center (ASC) for collection of biometrics.

An application submitted without the required fees will be returned to the applicant. Please note that Form I-821 has been revised and only the new form with Revision Date 7/30/04 will be accepted. Submissions of older versions of Form I-821 will be rejected. Submit the completed forms and applicable fee, if any, to the USCIS Chicago, IL Lockbox during the 60-day re-registration period that begins November 3, 2004 and ends January 3, 2005. An interim EAD will not be issued unless the Form I-765, as part of the TPS registration package, has been pending with USCIS more than 90 days after all requested initial evidence has been received, including collection of the applicant's fingerprints at an ASC. See 8 CFR 103.2(b)(10)(ii) and 8 CFR 274a.13(d).

If	Then
You are applying for an EAD valid until July 5, 2006, regardless of your age	You must complete and file the Form I-765, Application for Employment Authorization, with the $175 fee.
You are not requesting an EAD, or are applying under late initial registration provisions and are under age 14 or over age 65	You must complete and file Form I-765 (for data-gathering purposes only) with no fee.1
You are applying for an EAD and are requesting a fee waiver	You must complete and file: (1) Form I-765 and (2) a fee waiver request and affidavit (and any other supporting information) in accordance with 8 CFR 244.20.
1 An applicant who does not want an employment authorization document does not need to submit the $175 fee, but must still complete and submit Form I-765 for data gathering purposes.

Where Should an Applicant Submit His or Her Application to Re-Register or Late Initial Register for TPS?

The Form I-821, Form I-765, fees, and all supporting documentation should be filed at the USCIS Chicago Lockbox at: U.S. Citizenship and Immigration Services, P.O. Box 87583, Chicago, IL 60680-0583. Or, for non-United States Postal Service (USPS) deliveries: U.S. Citizenship and Immigration Services, 427 S. LaSalle—3rd Floor, Chicago, IL 60605.

Please note that this address is not the location where you have submitted your forms during previous re-registration periods. Aliens re-registering or late initial registering for TPS under the designation of Nicaragua should not sent their TPS forms and fees directly to a USCIS Service Center or district office. Failure to follow these instructions may delay processing of your TPS re-registration application.

Who Must Submit the $175 Filing Fee for the Form I-765?

Although all re-registrants must submit the Form I-765, only those applicants who are requesting an EAD, regardless of age, must submit the $175 filing fee or a fee waiver request pursuant to 8 CFR 244.20. Late initial registrants between the ages of 14 and 65, inclusive, who are requesting an EAD, must submit the $175 fee or a fee waiver request pursuant to 8 CFR 244.20. This requirement includes any individuals who do not need an EAD for employment or alien registration document purposes, but nevertheless choose to apply for an EAD for use solely as an identity document. Applicants who are submitting form I-765 only for data-gathering purposes are not required to submit a $175 filing fee, nor are they required to submit a fee waiver request.

Who Must Submit the $175 Biometric Services Fee?

All re-registrants and late initial registrants 14 years of age and older must submit the $70 biometric services fee. In addition, any applicant under the age of 14 choosing to apply for an EAD must submit the $70 biometric services fee, as a photograph, signature, and fingerprint are required to produce the card. This fee will not be waived. 8 CFR 103.2(e)(4)(i), (iii).

Who Is Eligible To Receive an Automatic Extension of His or Her EAD?

To receive an automatic extension of his or her EAD, an individual must be a national of Nicaragua (or an alien having no nationality who last habitually resided in Nicaragua) who has applied for and received an EAD under the TPS designation of Nicaragua. This automatic extension is limited to EADs bearing an expiration date of January 5, 2005, that were issued on either Form I-766, Employment Authorization Document, or Form I-688B, Employment Authorization Card. The EAD must also be either (1) a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” or (2) a Form I-688B bearing the notation “274a.12(a)(12)” or “274a.12(c)(19)” on the face of the card under “Provision of Law.”

What Documents May a Qualified Individual Show to His or Her Employer as Proof of Employment Authorization and Identity When Completing Form I-9, Employment Eligibility Verification?

For completion of the Form I-9 at the time of hire or re-verification, qualified individuals who have received a six-month extension of their EADs by virtue of this Federal Register notice may present to their employer a TPS-based EAD as proof of identity and employment authorization until July 5, 2005. To minimize confusion over this extension at the time of hire or re-verification, qualified individuals may also present to their employer a copy of this Federal Register notice regarding the automatic extension of employment authorization documentation to July 5, 2005. In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Form I-9 may be presented as proof of identity and employment eligibility; it is the choice of the employee.

How May Employers Determine Whether an EAD Has Been Automatically Extended Through July 5, 2005 and Is Therefore Acceptable for Completion of the Form I-9?

For purposes of verifying identity and employment eligibility or re-verifying employment eligibility on the Form I-9 until July 5, 2005, employers of Nicaraguan TPS beneficiaries whose EADs have been automatically extended by this notice must accept such EAD if presented. An EAD that has been automatically extended by this notice to July 5, 2005 will actually contain an expiration date of January 5, 2005, and must be either (1) a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” or (2) a Form I-688B bearing the notation “274a.12(a)(12)” or “274a.12(c)(19)” on the face of the card under “Provision of Law.” New EADs or extension stickers showing the July 5, 2005 expiration date will not be issued.

Employers should not request proof of Nicaraguan citizenship. Employers presented with an EAD that has been extended pursuant to this Federal Register notice, if it appears to be genuine and appears to relate to the employee, should accept the EAD as a valid “List A” document and should not ask for additional Form I-9 documentation. This action by the Secretary of DHS through this Federal Register notice does not affect the right of an employee to present any legally acceptable document as proof of identity and eligibility for employment.

Employers are reminded that the laws prohibiting unfair immigration-related employment practices remain in full force. For questions, employers may call the USCIS Office of Business Liaison Employer Hotline at 1-800-357-2099 to speak to a USCIS representative. Also, employers may call the U.S. Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) Employer Hotline at 1-800-255-8155 or 1-800-362-2735 (TDD). Employees or applicants may call the OSC Employee Hotline at 1-800-255-7688 or 1-800-237-2515 (TDD) for information regarding the automatic extension. Additional information is available on the OSC Web site at http://www.usdoj.gov/​crt/​osc/​index.html.

May I Apply for Another Immigration Benefit While Registered for TPS?

Yes. Registration for TPS does not prevent you from applying for another non-immigrant status, from filing for adjustment of status based on an immigrant petition, or from applying for any other immigration benefit or protection. 8 U.S.C. 1254a(a)(5). TPS alone, however, does not lead to lawful permanent residence. 8 U.S.C. 1254a(e), (f)(1), (h). For the purposes of change of nonimmigrant status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS. 8 U.S.C. 1254a(f)(4).

How Does an Application for TPS Affect My Application for Asylum or Other Immigration Benefits?

An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. 8 U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. 1254a(c)(2)(B)(ii).

Does This Extension Allow Nationals of Nicaragua (or Aliens Having No Nationality Who Last Habitually Resided in Nicaragua) Who Entered the United States After December 30, 1998, To File for TPS?

No. This is a notice of an extension of the TPS designation of Nicaragua, not a notice re-designating Nicaragua for TPS. An extension of a TPS designation does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS availability to those beyond the current TPS eligibility requirements for Nicaragua. To be eligible for benefits under this extension, nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) must have continuously resided in the United States since December 30, 1998 and been continuously physically present in the United States since January 5, 1999, the date of the initial designation of TPS for Nicaragua.

Are Certain Aliens Ineligible for TPS?

Yes. There are certain criminal and terrorism-related inadmissibility grounds that render an alien ineligible for TPS. 8 U.S.C. 1254a(c)(2)(A)(iii). Further, aliens who have been convicted of any felony or two or more misdemeanors committed in the United States are ineligible for TPS under section 244(c)(2)(B) of the Act, 8 U.S.C. 254a(c)(2)(B), as are aliens described in the bars to asylum in section 208(b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A).

What Is Late Initial Registration?

Some persons may be eligible for late initial registration under 8 U.S.C. 1254a(c)(1)(A)(iv) and 8 CFR 244.2(f)(2) and (g). To apply for late initial registration an applicant must:

(1) Be a national of Nicaragua (or alien who has no nationality and who last habitually resided in Nicaragua);

(2) Have continuously resided in the United States since December 30, 1998;

(3) Have been continuously physically present in the United States since January 5, 1999; and

(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Act, and not ineligible under section 244(c)(2)(B) of the Act.

Additionally, the applicant must be able to demonstrate that during the initial registration period (from January 5, 1999 to August 20, 1999), he or she:

(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;

(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;

(3) Was a parolee or had a pending request for reparole; or

(4) Is the spouse or child of an alien currently eligible to be a TPS registrant.

An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g). All late initial registration applications for TPS pursuant to the TPS designation of Nicaragua should be submitted to the Lockbox address in Chicago, Illinois.

What Happens When This Extension of TPS Expires on July 5, 2006?

At least 60 days before this extension of TPS designation of Nicaragua expires on July 5, 2006, the Secretary of DHS, after consultation with appropriate agencies of the Government, will review conditions in Nicaragua and determine whether the conditions for TPS designation continue to be met at that time, or whether the TPS designation should be terminated. 8 U.S.C. 1254a(b)(3). Notice of that determination, including the basis for the determination, will be published in the Federal Register.

Notice of Extension of Designation of TPS for Nicaragua

By the authority vested in DHS under section 244(b)(1)(B), (b)(3)(A), and (b)(3)(C) of the Act, DHS has determined, after consultation with the appropriate Government agencies, that the conditions that prompted designation of Nicaragua for TPS continue to be met. Accordingly, DHS orders as follows:

(1) The designation of Nicaragua under section 244(b)(1)(B) of the Act is extended for an additional 18-month period from January 5, 2005, to July 5, 2006. 8 U.S.C. 1254a(b)(3)(C).

(2) There are approximately 4,309 nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) who have been granted TPS and who are eligible for re-registration.

(3) To maintain TPS, a national of Nicaragua (or an alien having no nationality who last habitually resided in Nicaragua) who was granted TPS during the initial designation period and the subsequent extensions of this designation, or who was granted TPS during late initial registration, must re-register for TPS during the 60-day re-registration period from November 3, 2004 until January 3, 2005.

(4) To re-register, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status; (2) Form I-765, Application for Employment Authorization; and (3) a biometric services fee of seventy dollars ($70) if applicant is age 14 or older, or if applicant is under age 14, and

(5) At least 60 days before this extension ends on July 5, 2006, the Secretary of DHS, after consultation with appropriate agencies of the Government, will review the designation of Nicaragua for TPS and determine whether the conditions for designation continue to be met. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the Federal Register. Id.

(6) Information concerning the extension of designation of Nicaragua for TPS will be available at local USCIS offices upon publication of this notice and on the USCIS Web site at http://uscis.gov.

Dated: October 28, 2004.

Tom Ridge,

Secretary of Homeland Security.