05-17579. Extension of the Designation of Burundi for Temporary Protected Status; Extension of Employment Authorization Documentation for Eligible TPS Beneficiaries

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

The designation of Burundi for Temporary Protected Status (TPS) will expire on November 2, 2005. This Notice extends TPS for Burundi for 12 months, until November 2, 2006, and sets forth procedures for nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) for the additional 12-month period. Certain nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions.

The Department of Homeland Security recognizes that some re-registrants may not receive their new employment authorization documents until after their current documents expire on November 2, 2005. Accordingly, when eligible TPS beneficiaries re-register for TPS and appear at a U.S. Citizenship and Immigration Services Application Support Center for collection of biometrics, stickers will be affixed to their employment authorization documents to extend the validity of the cards through February 2006.

DATES:

The extension of the designation of TPS for Burundi is effective as of November 2, 2005, and will remain in effect until November 2, 2006. The 60-day re-registration period begins September 2, 2005 and will remain in effect until November 1, 2005.

FOR FURTHER INFORMATION CONTACT:

Susan Kopp Keyack, Residence and Status Services, Office of Program and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone [phone]. This is a toll call.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

Act—Immigration and Nationality Act.

ASC—U.S. Citizenship and Immigration Services, Application Support Center.

DHS—Department of Homeland Security.

DOS—Department of State.

EAD—Employment Authorization Document.

RIC—U.S. Citizenship and Immigration Services, Resource Information Center.

TPS—Temporary Protected Status.

USCIS—U.S. Citizenship and Immigration Services.

What Authority Does the Secretary of Homeland Security Have To Extend the Designation of TPS for Burundi?

Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of Homeland Security, 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 Homeland Security 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).

At least 60 days before the expiration of the TPS designation, or any extension thereof, section 244(b)(3)(A) of the Act requires the Secretary to review, after consultation with appropriate agencies of the Government, 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 determines that the foreign state no longer meets the conditions for the 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, section 244(b)(3)(C) of the Act provides for the extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary, a period of 12 or 18 months) unless the Secretary determines that a foreign state (or part thereof) no longer meets the conditions for the designation at least 60 days before the designation or extension is due to end. 8 U.S.C. 1254a(b)(3)(C).

Why Is the Secretary of Homeland Security Extending the TPS Designation for Burundi for an Additional Year?

On November 4, 1997, the Attorney General published a Notice in the Federal Register at 62 FR 59735 designating TPS for Burundi based upon the ongoing armed conflict and extraordinary and temporary conditions within the country. The Attorney General subsequently extended the designation for one year finding that the conditions prompting designation continued to exist. In November 1999, the Attorney General extended and re-designated TPS for Burundi by publishing a Notice in the Federal Register at 64 FR 61123, based upon ongoing armed conflict and extraordinary and temporary conditions. Since that date, the Attorney General and the Secretary of Homeland Security, respectively, have extended TPS for Burundi five times, determining in each instance that the conditions warranting the designation continued to be met. 65 FR 67404, 66 FR 46027, 67 FR 55875, 68 FR 52405, 69 FR 60165. The most recent extension became effective on November 2, 2004, and is due to end on November 2, 2005.

Over the past year, the Department of Homeland Security (DHS) and the Department of State (DOS) have continued to review conditions in Burundi. Based on this review, DHS has concluded that a 12-month extension is warranted because, although there has been progress in the peace process, both the armed conflict and extraordinary and temporary conditions that prompted designation persist. Further, DHS has determined that it is not contrary to the national interest of the United States to permit aliens who are eligible for TPS based on the designation of Burundi to remain temporarily in the United States. See 8 U.S.C. 1254a(b)(1)(C).

On June 27, 2005, DOS submitted a memorandum to U.S. Citizenship and Immigration Services (USCIS) recommending an extension of TPS for Burundi (DOS Recommendation). The DOS Recommendation noted that while there have been some steps towards long-term peace, progress has been slower than expected. Specifically, the DOS Recommendation explains that despite a cease-fire on May 15, 2005, violence has continued with attacks on some neighborhoods of the capital, Bujumbura, as recently as June. Questions also remain regarding the extent of civilian control over the military. While there has been some improvement in security conditions in parts of Burundi, fighting and resulting displacement of the population continues around Bujumbura. USAID reports that, as of February 2005, sporadic attacks temporarily displaced between 25,000 to 50,000 residents each month, impeding humanitarian assistance. In May 2004, the Security Council authorized a United Nations Operation in Burundi (UNOB). The UNOB has been extended several times, most recently until December 1, 2005, to help create the necessary security conditions for the provision of humanitarian assistance and to carry out the disarmament and demobilization portions of the national Disarmament, Demobilization and Reintegration program. The World Bank estimates that there are some 55,000 combatants to be demobilized; as of May 10, 2005, only 10,000 former combatants had entered the national demobilization process.

Burundi has an estimated population of 6.8 million people. Currently, there are approximately 800,000 Burundian refugees, approximately 12 percent of the total population, the vast majority of whom are in neighboring Tanzania, with smaller numbers in Rwanda, the Democratic Republic of Congo and other countries in the region. The State Department reported that last year the United Nations High Commissioner for Refugees estimated that 150,000 to 175,000 Burundian nationals would return annually. However, the USCIS Resource Information Center (RIC) reported that approximately 158,000 refugees have returned to Burundi since 2002. RIC Report, June 23, 2005.

There are an estimated 120,000 internally displaced persons (IDPs) within Burundi. This number, however, shifts according to the pace of conflict.

As a result of 12 years of armed conflict, the humanitarian situation in Burundi continues to be dire. According to the RIC Report:

• Two million people required food aid in March 2005, an increase of 40 percent from 2004;
• One million two hundred thousand Burundi nationals lack basic shelter;
• The poverty level doubled to 67 percent between 1990 and 2003. Sixty-eight percent of the population lives on one dollar a day or less compared to 40 percent in 1993.

Based upon this review, the Secretary of Homeland Security, after consultation with appropriate Government agencies, finds that the conditions that prompted the designation of Burundi for TPS continue to be met. See 8 U.S.C. 1254a(b)(3)(A). The armed conflict is ongoing, and there are extraordinary and temporary conditions in Burundi that prevent eligible Burundian nationals (or aliens having no nationality who last habitually resided in Burundi) from returning in safety, assuming these aliens meet the other statutory requirements for TPS. The Secretary of Homeland Security also finds that it is not contrary to the national interest of the United States to permit aliens who meet the eligibility requirements of TPS to remain in the United States temporarily. See 8 U.S.C. 1254a(b)(1)(C). On the basis of these findings, the Secretary of Homeland Security concludes that the designation of Burundi for TPS should be extended for an additional 12-month period. See 8 U.S.C. 1254a(b)(3)(C).

If I Currently Have Benefits Through the TPS Designation of Burundi, Should I Re-register for TPS?

Yes. If you already have received benefits through the TPS designation of Burundi, your benefits will expire on November 2, 2005. Accordingly, you must comply with the re-registration requirements described below in order to maintain TPS benefits through November 2, 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, or Have a Pending Application for TPS, How Do I Re-register Under the Extension?

All persons previously granted TPS under the designation of Burundi who wish to maintain such status must re-register under the extension by filing the following:

(1) Form I-821, Application for Temporary Protected Status, without fee;

(2) Form I-765, Application for Employment Authorization (see the chart below to determine whether you must submit the one hundred seventy-five dollar ($175) filing fee with Form I-765) or a fee waiver request;

(3) A biometric service fee of seventy dollars ($70) if you are 14 years of age or older, or if you are under 14 and are requesting an Employment Authorization Document (EAD). The biometric service fee will not be waived. 8 CFR 103.2(e)(4)(i), (iii). An application submitted without the required fees will be returned to the applicant.

(4) Unlike previous registration periods, you do not need to submit photographs with your TPS application because a photograph will be taken when you appear at a USCIS Application Support Center (ASC) for collection of biometrics. Biometric collection also includes capture of your signature and fingerprints.

Aliens who have previously registered for TPS but whose applications remain pending should follow these instructions if they wish to renew their TPS benefits.

What Edition of the Form I-821 Must be Submitted?

Form I-821 has been revised. Only the Form I-821 with a revision date of November 5, 2004 will be accepted. The bottom of each page of the revised form reads, “Form I-821 (Rev. 11/05/04)N.” Submissions of older versions of Form I-821 will be rejected.

Where Can I Obtain a Copy of the Revised Form I-821 Dated 11/5/04?

Immigration forms, including the revised Form I-821, are available from the toll-free USCIS Forms line, 1-800-870-3676, from your local USCIS district office, or from the USCIS Web site: http://www.uscis.gov.

Where and When Should the Forms and Fees Be Submitted?

Submit the completed forms and applicable fee(s), if any, to the USCIS Chicago, Illinois Lockbox, as noted below, during the 60-day re-registration period that begins September 2, 2005 and ends November 1, 2005.

Who Is Eligible to Receive a Sticker To Extend the Validity of His or Her EAD From November 2, 2005 Through February 2006?

An individual who is a national of Burundi (or an alien having no nationality who last habitually resided in Burundi), who has applied for and received an EAD under the TPS designation of Burundi, and who has not had TPS withdrawn or denied may have a temporary extension sticker affixed to his/her current TPS-related EAD when the individual re-registers for TPS and appears at an ASC for collection of biometrics. The sticker will indicate “February 2006” and will thereby extend the validity of the EAD until February 28, 2006. USCIS district offices will not be providing EAD extension stickers. This benefit will be available only through ASCs.

How May Employers Determine Whether an EAD Has Been Automatically Extended Through February 2006 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 February 2006, employers of Burundian TPS beneficiaries whose EADs have been extended by an extension sticker must accept such EAD if presented. Employers will see a sticker that indicates “February 2006” on 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.” This sticker extends validity of the EAD through February 28, 2006.

Employers should not request proof of Burundian citizenship. Unless put on notice that an employee is unauthorized to work, employers presented with an EAD that contains a valid extension sticker, 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 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 and that this Notice does not supersede or in any way limit applicable employment verification rules and policy guidance. 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.

Where Should an Applicant Submit His or Her Application for Re-Registration or for Late Initial Registration?

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

Please note that the above-stated addresses are not the same as where you have submitted your forms during previous re-registration periods. Aliens re-registering or filing for late initial registration for TPS under the designation of Burundi should not send their TPS forms and fees directly to a USCIS district office. Failure to follow these instructions will delay processing of your TPS re-registration application and may result in your application being returned to you.

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

(1) Although all re-registrants must submit the Form I-765, only those re-registrants requesting an EAD, regardless of age, must submit the $175 filing fee or a properly documented fee waiver request pursuant to 8 CFR 244.20.

(2) Persons between the ages of 14 and 65 (inclusive) filing under the late initial registration provisions who are requesting an EAD also must submit the $175 fee or a fee waiver request pursuant to 8 CFR 244.20.

(3) Aliens who are submitting Form I-765 only for data-gathering purposes (as explained in the chart below) are not required to submit a $175 filing fee, nor are they required to submit a fee waiver request.

Note that TPS re-registrants and applicants for late initial registration may wish to consider whether obtaining an EAD will be helpful to them for reasons other than verifying employment eligibility (for example, as a photo identity document and/or in order to demonstrate eligibility for a driver's license in some states).

If	Then
You are re-registering for or renewing a TPS-related EAD, regardless of your age	You must complete and file the Form I-765, Application for Employment Authorization, with the $175 fee or a fee waiver request in accordance with 8 CFR 244.20.
You are not requesting an EAD	You must complete and file Form I-765 (for data-gathering purposes only) with no fee or fee waiver request.1
You are applying for a TPS-related EAD under the late initial registration provisions and are between the ages of 14 and 65 (inclusive)	You must complete and file Form I-765 with the $175 fee or a fee waiver request.
You are applying for a TPS-related EAD under the 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 An applicant who does not want an EAD does not need to submit the $175 fee, but must complete and submit Form I-765 for data-gathering purposes.

Who Must Submit the $70 Biometric Service Fee?

The $70 biometric service fee must be submitted by all aliens 14 years of age and older who are re-registering for TPS, renewing temporary treatment benefits, or filing for late initial registration. In addition, since a photograph, signature, and fingerprint are required to produce an EAD, any applicant under the age of 14 choosing to apply for an EAD must submit the $70 biometric service fee. The biometric service fee cannot be waived. 8 CFR 103.2(e)(4)(i), (iii).

Does TPS Lead to Lawful Permanent Residence?

No. TPS is a temporary benefit that does not lead to lawful permanent residence by itself or confer any other immigration status. 8 U.S.C. 1254a(e), (f)(1), and (h). TPS also does not cure any immigration status violations, including periods of unlawful presence that may have accrued prior to an alien's filing of a prima facie eligible application for TPS which is ultimately granted, following withdrawal of TPS, or after termination of a TPS designation. When a country's TPS designation is terminated, TPS beneficiaries will have the same immigration status they held prior to TPS (unless that status has since expired or been terminated), or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will have no lawful status upon the termination of the TPS designation. Once the Secretary determines that a TPS designation should be terminated, aliens who had TPS under that designation and who have not acquired another immigration status are expected to plan for their departure from the United States.

May I Apply for Another Immigration Benefit While I am 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). 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 he or she 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 Burundi (or Aliens Having No Nationality Who Last Habitually Resided in Burundi) To Apply for TPS if They Entered the United States After November 9, 1999?

No. This is a Notice of an extension of the TPS designation of Burundi, not a Notice re-designating Burundi 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 Burundi. To be eligible for benefits under this extension, nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) must have been continuously physically present in the United States and must have continuously resided in the United States since November 9, 1999.

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. 1254a(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 aliens who did not file for TPS during the initial registration period may be eligible for late initial registration under 8 U.S.C. 1254a(c)(1)(A) and (c)(2) and 8 CFR 244.2(f)(2) and (g). To apply for late initial registration an applicant must:

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

(2) Have continuously resided in the United States since November 9, 1999;

(3) Have been continuously physically present in the United States since November 9, 1999; and

(4) Be 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 registration period for the initial designation (from November 4, 1997 to November 3, 1998), or during the registration period for the re-designation (from November 9, 1999 to November 2, 2000), he or she:

(1) Was a nonimmigrant or had been granted voluntary departure 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 within 60 days of the expiration or termination of the above-described conditions. 8 CFR 244.2(g). All late initial registration applications for TPS pursuant to the TPS extension of Burundi should be submitted to the USCIS lockbox address listed above.

What Happens When This Extension of TPS Expires on November 2, 2006?

At least 60 days before this extension of the TPS designation for Burundi expires on November 2, 2006, the Secretary of Homeland Security, after consultation with appropriate agencies of the Government, will review conditions in Burundi and determine whether the conditions for 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 Burundi

By the authority vested in the Secretary of Homeland Security under sections 244(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 Burundi for TPS continue to be met. Accordingly, DHS orders as follows:

(1) The designation of Burundi under section 244(b)(1)(C) of the Act is extended for an additional 12-month period from November 2, 2005, to November 2, 2006. 8 U.S.C. 1254a(b)(3)(C).

(2) There are approximately 30 nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who have been granted TPS and who are eligible for re-registration.

(3) To maintain TPS, a national of Burundi (or an alien having no nationality who last habitually resided in Burundi) who was granted TPS during one of the initial designation periods (or through late initial registration) and who re-registered during the subsequent extensions of this designation, if any, must re-register for TPS during the 60-day re-registration period from September 2, 2005 until November 1, 2005.

(4) To re-register, the alien must file the following: (1) Form I-821, Application for Temporary Protected Status, without fee; (2) Form I-765, Application for Employment Authorization; and (3) a biometric services fee of $70 if the alien is age 14 or older, or if the alien is under age 14 and requesting an EAD. Applications submitted without the required fees will be returned to the applicant. If the alien requests an EAD, he or she must submit $175 or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with Form I-765. An alien who does not request employment authorization must still file Form I-765 along with Form I-821, but he or she is not required to submit the fee or a fee waiver request for filing Form I-765. Failure to re-register during the re-registration period without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C). Aliens who have previously registered for TPS but whose applications remain pending should follow these instructions to renew temporary treatment benefits. Some persons who had not previously applied for TPS may be eligible for late initial registration under 8 CFR 244.2.

(5) At least 60 days before this extension ends on November 2, 2006, the Secretary of Homeland Security, after consultation with appropriate agencies of the Government, will review the designation of Burundi 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 Burundi for TPS will be available at local USCIS offices upon publication of this Notice and on the USCIS Web site at http://www.uscis.gov.

Dated: August 22, 2005.

Michael Chertoff,

Secretary.