[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Rules and Regulations]
[Pages 63593-63597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30480]


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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.

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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