[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Proposed Rules]
[Pages 30415-30419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14656]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 107 / Thursday, June 4, 1998 / 
Proposed Rules  

[[Page 30415]]


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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,

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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]
BILLING CODE 4410-10-M