Temporary Protected Status, Exception to Registration Deadlines

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

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

[INS No. 1608-93]

RIN 1115-AC30

Temporary Protected Status, Exception to Registration Deadlines

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations by providing additional exceptions to the

deadlines for initial registration for Temporary Protected Status

(TPS). Eligible persons who did not register for TPS because they are

or were in a status or a condition that made it unnecessary or

discouraged registration during the initial registration period may now

apply for late registration. This rule also makes conforming changes to

reflect the redesignation by the Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) of section 240 of

[[Page 63594]]

the Immigration and Nationality Act (Act) as section 244, and makes

other minor conforming changes to reflect current Service procedures.

DATES: This rule is effective November 16, 1998.

FOR FURTHER INFORMATION CONTACT: Pearl Chang, Chief, Residence and

Status, Adjudications Division, Immigration and Naturalization Service,

425 I Street, NW., Room 3214, Washington DC 20536, Telephone: (202)

514-5014.

SUPPLEMENTARY INFORMATION: Temporary Protected Status (TPS), as

provided for by section 244 of the Act, affords temporary protection in

the United States to persons of designated foreign states that are

experiencing ongoing civil strife, environmental disaster, or certain

other extraordinary and temporary conditions. As originally promulgated

in 1991, the regulations at 8 CFR part 240 limited TPS registration to

aliens who applied during the registration period established by

Federal Register notice initially designating a particular country for

TPS. This formulation left otherwise eligible aliens who, for one

reason or another, failed to register for TPS with the prospect of

having to return to their home countries while the conditions

precipitating the TPS designation remained. Many such aliens were

maintaining an immigration status or pursuing a pending immigration

application which they hoped or assumed would allow them to remain

legally in the United States permanently or at least until the

conditions in their home countries improved.

On November 5, 1993, the Service published an interim rule in the

Federal Register at 58 FR 58935 which addressed this problem with

respect to nonimmigrants and immigrants by creating an exception to the

initial registration deadlines for TPS. This final rule broadens that

exception to persons otherwise eligible for TPS who are or were in a

status or a condition that made it unnecessary or discouraged

registration during the initial registration period, including parolees

and pending asylum applicants.

Specifically, the exception in the interim rule was limited to

otherwise eligible aliens who are or were in any valid nonimmigrant or

immigrant status on the date their country was designated for TPS, and

who did not register during the initial registration period (usually

comprising the entire first period of designation). Pursuant to the

interim rule, such persons may apply for TPS during any extension of

the designation, provided the application is submitted within 30 days

of the expiration of the previous nonimmigrant or immigrant status, or

by February 3, 1994, (90 days after the effective date of that rule),

whichever is later. The interim rule also provided a finding of lawful

status as a nonimmigrant for those persons who fell out of status

between the end of the first period of registration and the effective

date of that rule. 8 CFR 244.10(f)(2)(v). (N.B. IIRIRA amended section

212(a)(9)(B) of the Act as of April 1, 1997, to define ``unlawfully

present'' such that an alien is present in the United States after the

expiration of a period of stay authorized by the Attorney General or

present in the United States without being admitted or paroled). This

definition applies only for purposes of 212(a)(9)(B)(i) and

212(a)(9)(C)(i)(I) of the Act. Nevertheless, those aliens who file for

TPS after April 1, 1997, and within 30 days of the expiration of their

previous status will not accrue time in unlawful presence after their

previous status expires and before they register for TPS. This finding

of nonimmigrant status will continue in effect until such time as the

Service may issue a final (or interim) regulation implementing a

comprehensive definition of unlawful presence.)

Discussion of Comments

The comment period for the interim rule closed on December 6, 1993.

The following is a discussion of those comments and the Service's

response.

The Service received five comments to the interim rule. All

commenters were supportive of allowing late initial TPS registration

under certain circumstances. Several commenters, however, urged that

the eligibility for late registration be extended to other groups. The

Service agrees with the majority of those commenters that applicants

for asylum and minors whose parents registered for TPS, but did not

register any or all of their children, should be eligible for such late

initial registration. In addition, the Service believes that the

following groups should also be eligible: (1) Those with an application

for nonimmigrant status, resident status, asylum, voluntary departure,

or any relief from removal which is pending or subject to further

review or appeal; and (2) those present subsequent to parole under

section 212(d)(5) of the Act.

The Service does not, however, agree with the commenter who

requested that DED Salvadorans should be eligible for late registration

because TPS for El Salvador has already been terminated.

The Service does not agree with the request that those who do not

meet the basic eligibility requirements, including physical presence in

the United States by the date specified in the TPS Federal Register

notice, should be eligible for initial late registration.

Finally, the Service agrees with both commenters who suggested that

the application period for initial late registration be extended beyond

the 30 days specified in the interim rule to provide additional time

for the distribution of information regarding TPS to the affected

aliens. This final rule extends the late initial registration period to

60 days from the date of the TPS notice's publication in the Federal

Register for all grandfathered (otherwise ineligible) applicants. The

final rule also provides 60 days to register for TPS for those who

become eligible for late registration.

In addition, the final rule provides that those persons who would

otherwise have been eligible for TPS during the first period of

registration who: (1) Were in a valid status during that period of

registration; (2) fell out of valid status during any subsequent period

of registration; and (3) were prevented from registering for TPS by the

regulation in effect at the time, will be held to have maintained a

valid status during that period.

Persons covered by this exception must meet all other requirements

of TPS including presence in the United States at the time the foreign

state in question was designated for TPS. This rule is not intended to

extend protection to persons who arrived in the United States, whether

legally or illegally, after the designation was made, nor is it

intended to cover persons who were not in valid immigrant or

nonimmigrant status during the initial registration period.

Technical Amendments

This rule also changes all references to section 240 of the Act to

section 244 as required by IIRIRA. Finally, this rule modifies several

definitions within section 244 to better comport with the rest of 8

CFR. Specifically, the definition of Act is removed because it

duplicates the definition at 8 CFR 1.1(b) which controls. The term

state is changed to foreign state (although the definition remains the

same) for clarity. The definition of charging document is revised to

comport with the definition of that term in Sec. 3.13.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule will

not, if promulgated, have a significant economic impact on a

substantial number of small entities.

[[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