Habitual Residence in the Territories and Possessions of the United States

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1811-96]

RIN 1115-AE61

Habitual Residence in the Territories and Possessions of the

United States

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service (Service) regulations, by adding provisions governing rights

and limitations on ``habitual residence'' under the Compact of Free

Association between the United States and the Government of the

Marshall Islands and the Government of the Federated States of

Micronesia, and the Compact of Free Association between the United

States and the Government of Palau (collectively, Compacts). This

proposed rule defines ``habitual resident'' and imposes

nondiscriminatory limitations on habitual residence in accordance with

the provisions of the respective Compacts. The increasing population of

citizens of the freely associated states (FAS) in the territories and

possessions of the United States requires action to maintain the

benefits to the citizens of the FAS of employment and education in the

territories and possessions, and the economic benefit to the

territories and possessions of their presence, while simultaneously

minimizing costs resulting from granting unlimited access of such FAS

citizens to the territories and possessions.

DATES: Written comments must be submitted on or before August 3, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure

proper handling, please reference INS number 1811-96 on your

correspondence. Comments are available for public inspection at the

above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer, Immigration and Naturalization

Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone

(202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

With the enactment of Public Law 99-239, which approved the Compact

between the United States and the Government of the Marshall Islands

and the Government of the Federated States of Micronesia, and Public

Law 99-658, which approved the Compact between the United States and

Palau, the majority of citizens of these territories, the former Trust

Territory of the Pacific Islands, now called the freely associated

states (FAS), became eligible to enter, live, work, and be educated in

the United States and its territories and possessions without regard to

requirements in sections 212(a)(5)(A) and 212(a)(7)(A) and (B) of the

Immigration and Nationality Act (Act). See section 141(a) of the

Compacts. Both Compacts, at section 141(b), provide that the right of

citizens of the FAS to establish habitual residence in a territory or

possession of the United States may be subjected to nondiscriminatory

limitations.

Section 643 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), requires the Commissioner to issue

regulations regarding the ``rights of `habitual residence' in the

United States'' under the terms of the Compacts. Because the Compacts

permit limitations on habitual residence only in the territories and

possessions of the United States, the Service interprets section 643 of

IIRIRA to apply only in the territories and possessions and not in the

50 states or the District of Columbia.

This proposed rule defines ``habitual resident'' and imposes

minimal limitations on the right of FAS citizens to establish habitual

residence within the territories and possessions of the United States.

These limitations shall be applicable to habitual residents living in

Guam, American Samoa, the United States Virgin Islands, and the

Commonwealth of Puerto Rico. They do not apply to FAS citizens living

in the 50 states or the District of Columbia.

Section 503 of the Covenant to Establish a Commonwealth of the

Northern Mariana Islands in Political Union with the United States of

America, approved by Congress in Public Law 94-241, provides that the

``immigration and naturalization laws of the United States'' shall not

apply to the Northern Mariana Islands ``except in the manner and to the

extent made applicable to them by the Congress by law.'' To date,

Congress has not taken action to apply the Federal immigration and

naturalization laws to the Commonwealth of the Northern Mariana Islands

(CNMI). This proposed rule, therefore, does not affect the right of FAS

citizens to establish habitual residence in the CNMI as long as the Act

has not been made applicable to the CNMI. The CNMI, however, may

establish nondiscriminatory limitations on habitual residence that are

consistent with the Compact and United States treaties and law.

``Habitual Resident'' Defined

In the proposed rule, the Service defines an habitual resident as

an FAS citizen, as defined in section 141(a) of both Compacts, who has

been physically present in a territory or possession of the United

States for a cumulative total of 1 year during any continuous 24-month

period, and who is not:

(1) A dependent of a representative to the United States pursuant

to article V of either of the Compacts;

(2) A member of the United States Armed Forces serving in an active

duty capacity;

(3) A nonimmigrant under another (non-Compact) category;

(4) A lawful permanent resident; or

(5) A full-time student under Compact provisions in a territory or

possession of the United States and maintaining status.

Notwithstanding section 101(a)(15) of the Act, an FAS citizen who

enters the United States under section 141 of the Compacts is a

nonimmigrant under the terms of the Compacts. The term ``habitual

residence,'' defined in section 461 of the Compacts, may be applied to

FAS citizens and may be subjected to nondiscriminatory limitations

under section 141(b) of the Compacts.

[[Page 30416]]

Community Concerns

Officials of the United States territories and possessions have

reported that there are growing numbers of unemployed FAS citizens who

reside in those territories and possessions and who adversely impact

limited community resources. At the same time, these officials also

express concern that imposing severe restrictions on the right of FAS

citizens to establish habitual residence may deprive their communities

of needed FAS workers who enhance the economy of those territories and

possessions.

This rule addresses these concerns. The Service believes that

imposing limitations on habitual residence will help to preserve the

lawful status of the habitual residents who are lawfully and gainfully

employed or otherwise financially self-sufficient. It will also protect

the economies of the respective territories or possessions in which

they reside by permitting the removal of FAS citizens who are not

individually financially self-sufficient and are not being financially

supported by their family. The Service interprets the provision in the

Compacts that residence of less than 1 year is not ``habitual

residence'' to mean residence in a territory or possession of the

United States for aggregate periods of less than 1 year is not

considered to be habitual residence. Therefore, this regulation will

not affect FAS citizens whose residence in the territories and

possessions of the United States adds up to less than 1 year.

Considerations for Rulemaking

Recommendations were solicited from the Governments of the Virgin

Islands, Puerto Rico, Guam, and the Northern Mariana Islands by the

United States Department of Interior, Office of Insular Affairs. The

Office of Insular Affairs also solicited suggestions from the

governments of the FAS. In its cover letter to the presidents of the

freely associated states, the Office of Insular Affairs suggested that

the imposition of limitations on habitual residence might include a

provision allowing an habitual resident in a United States territory or

possession to remain there if the habitual resident is gainfully

employed.

The Office of Insular Affairs received three responses to its

inquiry. The Governor of the United States Virgin Islands stated that

migration of FAS citizens presented no adverse consequence for his

territory. The President of Palau responded with general opposition to

the imposition of any limitations. The Ambassador of the Federated

States of Micronesia (FSM) to the United States stated that the FSM

would not be concerned if the United States established a work

requirement for FAS citizens who are habitual residents in a United

States territory. He requested, however, that an unemployed spouse,

pre-school children, and elderly relatives be allowed to reside in the

territory with a working habitual resident.

Numerical Limitations Considered

Numerical limitations on habitual residence were considered by the

Service and rejected at this time. The Service believes such

limitations would not directly address the overall problem of

restricting the entry of unemployed aliens into the U.S. territories

and possessions. Further, such numerical limitations would possibly be

more restrictive than is warranted at this time. The imposition of

numerical limitations would fail to distinguish between employed and

unemployed FAS citizens residing within U.S. possessions and

territories. Newly arrived FAS citizens who desired to establish

habitual residence after 1 year for the purpose of the continuation of

lawful employment within a territory would be subject to numerical

availability, while chronically unemployed habitual residents who have

resided in the territory for a longer period, and who fell within a

numerical availability quota, might continue in an indefinite lawful

status. This method appears inequitable for the alien and unresponsive

to the problem of restricting the flow of unemployed aliens into the

territories.

Time Limitations Considered

Time limitations were also considered and rejected as not clearly

necessary at this time. Lawfully and gainfully employed FAS citizens

are currently recognized as an asset to their communities. They fulfill

a need for labor and contribute to the economic development of the

territory. Their continued presence eliminates the need for training

newcomers. The earnings they send home also benefit the FAS economies.

The imposition, therefore, of limitations on the maximum period of stay

of these workers does not appear necessary at this time.

Limitations Based on Employment

Limiting habitual residence to lawfully and gainfully employed FAS

citizens who are financially self-sufficient was determined to be the

method which best complied with both the letter and the spirit of the

Compacts and represented the minimal limitation currently needed to

respond affirmatively and effectively to community concerns of the

growing numbers of unemployed habitual residents. This method allows

for the preservation of status for current habitual residents who are

lawfully and gainfully employed, and allows for additional FAS citizens

to engage in lawful and gainful employment in the territories and

possessions of the United States in the future under the provisions of

the Compact.

The Service considered the special problem posed by FAS citizens

engaged in seasonal employment in United States territories and

possessions and the need for the proposed rule to have provisions or

exceptions regarding seasonal employment. Agriculture and commercial

fishing are contributors to the economy of United States territories

and possessions, and it is not the Service's intent to deprive these

industries of needed FAS workers. The Service believes that the

proposed rule as written is sufficient to protect the lawful

nonimmigrant status of FAS seasonal workers, and that exceptions or

provisions regarding seasonal workers are not needed at this time. The

Service reserves the right to amend the rule to include provisions or

exceptions regarding FAS seasonal workers employed in U.S. territories

and possessions, should conditions warrant, and seeks public comment in

this regard.

Annual Registration Considered

The Service considered imposing a registration requirement to

ensure that FAS citizens after 1 year fall within the ambit of the

limitations on habitual residence. The Service rejected annual

registration due to resource limitations and the lack of empirical data

establishing the necessity of registration at this time. Rather, the

Service will assess and determine continued eligibility for habitual

residence on a case-by-case basis when status eligibility is raised

through complaints or other information available to the Service.

Proposed Limitations on Habitual Residence

In accordance with section 141(b) of the Compacts, the Service

proposes to limit habitual residence in the territories and possessions

of the United States (except the CNMI as long as the Act has not been

made applicable to the CNMI) to those eligible FAS citizens:

(1) Who are actively engaged in lawful, full-time occupations; or

(2) Whose income or other financial resources meet or exceed the

minimum Service guidelines for fiscal sufficiency,

[[Page 30417]]

which has been determined as at least 100 percent of the official

poverty guidelines, see 45 CFR Pt. 1611, App. A, for an individual or

for a family unit; and

(3) Who are not in receipt of public benefits in violation of

section 401 or 411 of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (Personal Responsibility Act), Pub. L. 104-

193, 110 Stat. 2261, 2268, as amended by sections 5561 and 5565 of the

Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 638, 639

(``unauthorized public benefits'').

The unemployed spouse and all other eligible dependents, who are

themselves FAS citizens and habitual residents, shall also be

considered to be in lawful nonimmigrant status, provided they are

financially supported by the principal habitual resident, and provided

that, as a family unit, their income or other financial resources meet

or exceed 100 percent of the official poverty guidelines for a family

of the appropriate size, and they are not individually in receipt of

unauthorized public benefits.

The Service proposes that the employment requirement of this

provision not apply to habitual residents who are of lawful independent

financial means, including those who are retired. To maintain their

lawful status within the territories, habitual residents who are of

lawful independent financial means or who are retired must, however,

maintain an income or possess sufficient financial resources which meet

or exceed 100 percent of the official poverty line for a family of the

appropriate size. Further, such persons shall not be in receipt of

unauthorized public benefits. These limitations are not discriminatory

because they do not discriminate between or among the different freely

associated states. Moreover, they do not discriminate against citizens

of the FAS as compared with nonimmigrant citizens of other countries

because there are no other nonimmigrant aliens who are permitted to

enter, live, work, and be educated in the United States without regard

to the requirements of section 212(a)(5)(A) and (7)(A) and (B) of the

Immigration and Nationality Act.

Violation of Status

Any habitual resident who is unemployed for a period in excess of

60 consecutive days, or whose income as an individual or as a family

unit falls below the official poverty guidelines, or who is in receipt

of unauthorized public benefits, shall be considered to be in violation

of status and subject to removal from the United States territory or

possession in which he or she resides. The unemployed spouse and other

eligible dependents of an habitual resident shall be considered to be

in violation of status and subject to removal from the United States

territory or possession in which they reside should the principal

habitual resident become unemployed for a period of more than 60

consecutive days, or should their income as a family unit fall below

the official poverty guidelines. This means that the principal habitual

resident and his or her habitual resident dependents will all be

considered to be in violation of status either if the principal is

unemployed for more than 60 consecutive days, or if the family unit

falls below the official poverty guidelines. Without the financial

support of the principal habitual resident, the dependents would be in

unlawful status. It is only through the support of the principal alien

that they are considered to be in lawful status. Similarly, the

principal alien must be held responsible for the support of his or her

dependent family members in the territories and possessions so that the

taxpayers will not be burdened by their support.

If any eligible dependent receives unauthorized public benefits,

that individual dependent will be considered to be in violation of

status and subject to removal from the U.S. territory or possession in

which he or she resides. This provision will require the removal of any

dependent who receives unauthorized public benefits, potentially

resulting in the separation of families or the removal of an individual

dependent who is elderly, infirm, of tender years, or otherwise unable

to support himself or herself. For that reason, we invite public

comment on whether the selection of this option in the proposed rule,

i.e., removal of only the family member who receives unauthorized

public benefits, is preferable to a provision requiring the removal of

the entire family unit (the principal habitual resident and all of his

or her habitual resident dependents) upon receipt by one family member

of unauthorized public benefits.

Reservation of Right to Modify Limitations

This proposed rule establishes limitations on habitual residence at

minimal levels. The Service reserves the right to modify these

limitations and/or impose a registration requirement in the future

should conditions warrant these actions.

Request for Comments

The Service seeks public comments regarding this proposed rule,

including proposed limitations on habitual residence of individuals and

families within the territories and possessions of the United States

and the need for provisions or exceptions to the rule regarding FAS

seasonal workers.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that the rule

will not have significant economic impact on a substantial number of

small entities. This rule merely defines the rights and limitations of

an existing class of nonimmigrants. It will affect certain individual

aliens, not small entities.

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 it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Act of 1995.

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 the

ability of United States-based companies to compete with foreign-based

companies in domestic and export markets.

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

This regulation 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,

[[Page 30418]]

it is determined that this rule does not have sufficient federalism

implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This proposed rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

This rule does not impose any new reporting or recordkeeping

requirements.

List of Subjects in 8 CFR Part 214

Administrative practice and procedures, Aliens, Employment,

Students.

Accordingly, part 214 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

1. The authority citation for part 214 is revised to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,

1281, 1282; 48 U.S.C. 1901 note, 1931 note; sec. 643, Pub. L. 104-

208, 110 Stat. 3009-708; 8 CFR part 2.

2. Section 214.7 is added to read as follows:

Sec. 214.7 Habitual residence in the territories and possessions of

the United States.

(a) Definitions as used in this section.

(1) Dependent means a citizen of the freely associated states

(FAS), as defined in section 141(a) of the Compacts of Free

Association, approved by Public Law 99-239 with respect to the

Governments of the Marshall Islands and the Federated States of

Micronesia, and by Public Law 99-658, with respect to the Republic of

Palau (Compacts), who is a habitual resident, reliant on a principal

habitual resident for support, and:

(i) The unemployed spouse of a principal habitual resident;

(ii) A child, unmarried and under 21 years of age, of a principal

habitual resident or of his or her unemployed spouse;

(iii) The parent of a principal habitual resident; or

(iv) The parent of the unemployed spouse of a principal habitual

resident.

(2) Family unit means a principal habitual resident and his or her

dependents.

(3)(i) Full-time employment means any lawful occupation of a

current and continuing nature that provides:

(A) Forty hours of gainful employment each week; or

(B) An annual income that meets or exceeds 100 percent of the

official poverty guidelines, see 45 CFR part 1611, appendix A, for an

individual or a family unit of the appropriate size.

(ii) For purposes of computing ``full-time employment,'' while

attending an accredited college in the territory on a part-time basis,

each college credit-hour of study diminishes by 3 hours the 40-hour

gainful employment requirement.

(4) Habitual resident means an FAS citizen as defined in section

141(a) of the Compacts who has been physically present in a territory

or possession of the United States (except the CNMI, as long as the Act

has not been made applicable to the CNMI), after admission under

section 141(a) of the respective Compact, for a cumulative total of 1

year during any continuous 24-month period, except that no period of

time in which the citizen of the FAS is in a territory or possession of

the United States as a:

(i) Full-time student under Compact provisions;

(ii) Dependent of a resident representative as described in section

152 of the Compacts;

(iii) Member of the United States Armed Forces serving in an active

duty capacity;

(iv) Nonimmigrant under another (non-Compact) category; or

(v) Lawful permanent resident of the United States, shall be taken

into account in determining the period of habitual residence in the

territories or possessions of the United States.

(5) Principal habitual resident means an employed FAS citizen, or

FAS citizen of lawful independent means, or retired FAS citizen, upon

whose lawful status the unemployed spouse and all unemployed dependents

are reliant.

(b) General. The regulations in this section regarding habitual

residence in the territories and possessions of the United States are

applicable to habitual residents living in Guam, American Samoa, the

United States Virgin Islands, the Commonwealth of Puerto Rico, and any

other territory or possession of the United States if the Immigration

and Nationality Act is applicable in that territory or possession.

(c) Rights. Under the provisions of the Compacts, FAS citizens, who

are eligible Compact entrants pursuant to section 141(a) of the

Compacts, have the right to enter, reside, and work in the United

States, its territories or possessions in nonimmigrant status and

without regard to sections 212(a)(5)(A) and 212(a)(7) (A) and (B) of

the Act.

(d) Limitations. The right of eligible FAS citizens to establish

habitual residence in a lawful nonimmigrant status within a possession

or territory is limited to those eligible FAS citizens who:

(1)(i) Are actively engaged in a lawful, full-time occupation; or

(ii) Possess an annual income of sufficient financial resources

which meet or exceed 100 percent of the official poverty guidelines;

and

(2) Are not in receipt of public benefits, in violation of section

401 or 411 of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2261, 2268,

as amended by sections 5561 and 5565 of the Balanced Budget Act of

1997, Public Law 105-33, 111 Stat. 638, 639 (``unauthorized public

benefits'').

(e) Dependents. The dependent of an habitual resident, or of the

spouse of an habitual resident, who is an FAS entrant and otherwise in

lawful status, shall also be considered to be in lawful nonimmigrant

status provided the dependent is financially supported by the principal

habitual resident; the financial resources of the family unit meet or

exceed 100 percent of the official poverty guidelines, see 45 CFR part

1611, appendix A, for a family unit of the appropriate size; and the

dependent is not in receipt of unauthorized public benefits.

(f) Investors. An FAS investor, for the purposes of this section,

shall be considered to be self-employed and shall be subject to the

benefits, limitations, and requirements contained in this section.

(g) Violation of status. Any habitual resident who ceases to work

for a period exceeding 60 consecutive days for reasons other than a

lawful strike or other lawful labor dispute involving work stoppage; or

whose annual income or financial resources, as an individual or as a

family unit, fall below the official poverty guidelines; or who as an

individual receives unauthorized public benefits, shall be considered

to be in violation of status pursuant to section 237(a)(1)(C)(i) of the

Act and subject to removal from the United States territory or

possession in which he or she resides.

(h) Dependents subject to removal. A dependent of an habitual

resident who is in lawful habitual resident status solely due to his or

her relationship with a principal habitual resident, shall lose such

lawful status and be subject to removal from the United States

territory or possession in which he or she resides if:

(1) The principal habitual resident ceases to work for a period

exceeding 60 consecutive days;

(2) The annual family income or financial resources of the

dependent's

[[Page 30419]]

family unit fall below the official poverty guidelines; or

(3) The dependent receives unauthorized public benefits.

Dated: May 28, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 98-14656 Filed 6-3-98; 8:45 am]

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