[Federal Register Volume 65, Number 182 (Tuesday, September 19, 2000)]
[Rules and Regulations]
[Pages 56463-56466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23788]



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  Federal Register / Vol. 65, No. 182 / Tuesday, September 19, 2000 / 
Rules and Regulations  

[[Page 56463]]



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: Final rule.

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

SUMMARY: This final rule amends the Immigration and Naturalization 
Service (Service) regulations relating to the rights and limitations of 
habitual residents in the territories and possessions of the United 
States under:
     The Compact of Free Association between the United States 
and the Government of the Republic 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.
    This amendment defines the rights and limitations of nonimmigrant 
habitual residents of the territories and possessions of the United 
States, other than American Samoa and the Northern Mariana Islands, who 
were admitted to those territories or possessions pursuant to the 
provisions of those Compacts. The final rule establishes a policy that 
protects the rights of both habitual residents electing to reside in 
United States territories and possessions and the citizens of the 
territories and possessions.

DATES: This final rule is effective September 19, 2000.

FOR FURTHER INFORMATION CONTACT: Craig Howie, Headquarters 
Adjudications Officer, Business and Trade Services, Adjudications 
Division, Immigration and Naturalization Service, 425 I Street, NW., 
Room 3040, Washington, DC 20536, telephone (202) 353-8177.

SUPPLEMENTARY INFORMATION:

Background

Why Are We Issuing This Regulation?

    Public Law 99-239 approved the Compact between the United States 
and the Government of the Republic of the Marshall Islands and the 
Government of the Federated States of Micronesia, and Public Law 99-658 
approved the Compact between the United States and Palau (collectively, 
Compacts). Under the Compacts, the majority of citizens of these newly 
formed states (parts of the former Trust Territories 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 sections 212(a)(5)(A) and 
212(a)(7) (A) and (B) of the Immigration and Nationality Act (Act), 
formerly sections 212(a) (14), (20), and (26). Section 141(a) of the 
Compacts. Both Compacts, at section 141(b), provide that the right of 
citizens of the FAS, who were admitted to the territories or 
possessions of the United States pursuant to the provisions of the 
Compacts, to establish habitual residence in a territory or possession 
of the United States may be subject to nondiscriminatory limitations.
    The Service interprets section 141(b) of the Compacts to the effect 
that citizens of the FAS who enter the territories and possessions of 
the United States pursuant to section 141(b) of the Compacts are 
subject to limitations not only at the time they establish their 
habitual residence but for the entire duration of their habitual 
residence. The negotiators of the Compacts realized that while the 
economy of the island territories was fragile, the vast majority of the 
FAS citizens would actively participate in and be beneficial to it. On 
the other hand, there would be some who would not be gainfully employed 
or who would even engage in welfare fraud and thus become a burden on 
the territorial economy. Section 141(b) is directed at such entrants 
from the FAS. It is immaterial for the territorial economy whether this 
burden exists at the time when the FAS citizen first established his or 
her habitual residence in the territory or whether it occurs at a later 
time. The Service cannot attribute to the parties concluding the 
Compacts an intent that, once a citizen from the FAS first establishes 
his habitual residence in a territory or possession, he or she is 
immune from the future imposition of the limitations envisaged by 
section 141(b). The Service therefore reads the word ``establishment'' 
as necessarily including ``maintenance,'' and uses that word 
accordingly in this rule.
    Section 643 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Public Law 104-208, requires the 
Commissioner of the Immigration and Naturalization Service to issue 
regulations regarding the ``rights of `habitual residence' in the 
United States'' under the terms of the Compacts.

What Is a ``Habitual Resident''?

    ``Habitual resident'' refers to an individual who is an FAS citizen 
who has been admitted to a territory or possession of the United States 
(except the Commonwealth of the Northern Mariana Islands or American 
Samoa as long as the Act has not been made applicable there) pursuant 
to section 141(a) of the Compacts, and who occupies in such territory 
or possession a habitual residence as that term is defined in section 
461 of the Compacts, namely, a place of general abode or a principal, 
actual dwelling place of a continuing or lasting nature, including 
physical presence for a cumulative total of at least 365 days, and who 
is not a: (1) Full-time student under the Compact provisions; or a (2) 
dependent of a resident representative as described in section 152 of 
the Compacts. Since the term ``habitual resident'' requires that the 
person have entered the United States pursuant to section 141(a) of the 
Compacts, the term does not apply to FAS citizens whose presence in the 
territories or possessions is based on an authority other than section 
141(a), such as members of the Armed Forces of the United States 
described in 8 CFR Sec. 235.1(c), persons lawfully admitted for 
permanent residence in the United States, or persons having 
nonimmigrant status whose entry into the United States is based on 
provisions of the Compacts or the Act other than section 141(a) of the 
Compacts.

[[Page 56464]]

What Does This Regulation Accomplish?

    This regulation is intended to define the rights of and limitations 
on habitual residence under the Compacts. In particular, the 
limitations relate to grounds for the possible removal of a habitual 
resident from the United States. The increasing presence of citizens of 
the FAS in the territories and possessions of the United States 
requires action to ensure that 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 
are maintained, while simultaneously minimizing the impact on the 
territories and possessions resulting from granting unlimited access of 
such FAS citizens.

Where Does This Rule Apply?

    This rule applies to habitual residents living in the territories 
and possessions of the United States to which the Act applies. These 
territories and possessions are at present Guam, the Commonwealth of 
Puerto Rico, and the American Virgin Islands.
    This rule does not apply to FAS citizens residing in American Samoa 
or the Commonwealth of the Northern Mariana Islands, as long as the Act 
does not apply to them, or to FAS citizens residing in the fifty States 
or the District of Columbia.

Did the Service Publish a Rule Prior to Issuing This Final Rule?

    On June 4, 1998, the Service published a proposed rule at 63 FR 
30415. Written comments were to be submitted on or before August 3, 
1998. The Service received three comments. The following is a 
discussion of the public comments and the Service's responses.

Discussion of Comments

    All commenters expressed concern with the proposed definition of 
``dependents,'' in particular, limiting dependents to an unemployed 
spouse, parents and unmarried children under 21 years of age. In the 
opinion of one commenter, this ignores the realities of family life in 
the Pacific Islands. However, it would not be workable to include 
distant relatives and family friends in the definition of 
``dependents,'' as the writers advocated. In addition, the need to 
minimize any increase in social service expenditures by the territory 
and possession governments on behalf of habitual resident dependents 
renders the above-noted definition necessary.
    One commenter recommended that the poverty guidelines established 
by the Department of Health and Human Services (HHS) that are required 
of the family unit be made applicable to the single individual with no 
family. Under the proposed rule, only 40 hours of ``gainful 
employment'' each week, regardless of his or her salary, were required 
of such an individual. Another commenter suggested striking altogether 
the requirement that the financial resources of the family unit meet or 
exceed 100 percent of these poverty guidelines. Another suggestion 
involved adjusting the HHS official poverty guideline standard to 
reflect the actual circumstances in Guam.
    The Service lacks the needed expertise in matters relating to 
determining poverty guidelines to make meaningful adjustments to the 
HHS official poverty guidelines so as to reflect the actual 
circumstances in Guam, the territory most affected by this rulemaking. 
By incorporating the requirement that a habitual resident be ``self-
supporting,'' however, the standard becomes based on the ability to 
financially support oneself with regard to local conditions. Further, 
``self-supporting'' is defined in the final rule as either: (a) Having 
a lawful occupation of a current and continuing nature which provides 
40 hours of gainful employment each week, without regard to the actual 
income or size of the family (for part-time students in college or 
institutions of higher learning the 40-hour requirement is reduced by 
three hours for each college or graduate credit-hour of study); or (b) 
in the case of a person employed for less than 40 hours a week or not 
at all, having lawfully derived funds that meet or exceed 100 percent 
of the official poverty guidelines for Hawaii for a family unit of the 
appropriate size as published annually by HHS. This approach provides 
what the Service views as a simple, fair, and flexible standard 
consistent with the Compacts.
    All commenters voiced concern over adequate enforcement procedures. 
The writers suggested implementation of a registration system financed 
from revenues collected from the Service operation on Guam. These 
commenters wrote that the Service collects more revenue via fees than 
it expends in fulfilling its statutory obligations on Guam. However, 
the Service notes that, with the exception of a $6 Inspections user fee 
that all arriving persons pay upon entering Guam by air, immigration 
fees collected by the Service within Guam are not retained by the 
Service but are turned over to the Treasurer of Guam, pursuant to 
section 30 of the Organic Act of Guam, 48 U.S.C. 1421(h). In addition, 
the Inspections user fee does not currently cover the Service's 
operational costs on Guam. Appropriated funds are used to make up the 
difference. Therefore, there are no surplus funds from the Inspections 
user fee account that can be used to finance the enforcement efforts 
advocated by the commenters.
    The Service is aware of the difficulties in enforcing the proposed 
rule in an ad hoc fashion. In order to address the concerns of the 
commenters and to be in compliance with our own obligation to enforce 
the nondiscriminatory limitations on habitual residence provided for by 
the Compacts and Congress, the Service intends to work with the 
Government of Guam and the United States Department of the Interior in 
order to establish methods to fairly enforce the nondiscriminatory 
limitations on habitual residence. (The term ``nondiscriminatory'' is 
discussed in the supplementary information portion of the proposed 
rule. Since the Service has made no changes in how the term is used, 
there is no need here for further discussion.)
    The Service will enforce the existing requirement that all 
nonimmigrants, including FAS citizens entering a United States 
territory, complete Service Form I-94, Arrival-Departure Record, and 
turn it in, as required, upon departure. See 8 CFR 235.1(f) The Service 
may extract information from the I-94 for possible enforcement purposes 
and may share this information with the Government of Guam on an as-
needed basis.
    The final rule, therefore, establishes the rebuttable presumption 
that an FAS citizen is a habitual resident if the Service has reasons 
to believe that the FAS citizen was admitted to a United States 
territory more than a year ago but failed to turn in his or her I-94 
upon departure, or failed to apply for a replacement arrival-departure 
record. Having the correct information, as gleaned from the I-94, on a 
particular FAS citizen's arrival and departure is important. Without 
such information the Service will now know how much time the FAS 
citizen has previously spent within the territory, and therefore may 
not know whether or not the FAS citizen is a habitual resident.
    This presumption approach the Service intends to use is similar to 
the concept employed in a parking lot in order to determine the amount 
a driver must pay for parking. Upon entering the lot, the driver gets a 
ticket and then turns it in upon leaving to determine how much to pay. 
If the driver loses his or her ticket, the parking lot charges the

[[Page 56465]]

driver for the maximum amount of time, since the parking lot attendant 
is able to know only when the driver is leaving. The burden is always 
on the driver to prove the time of entry into the parking lot. In this 
example, the driver's entry is proven via the parking lot ticket.
    The Service will apply the same concept to the situation at hand. 
If the Service only knows when the FAS citizen was previously admitted, 
the burden is on the FAS citizen to show when he or she departed. The 
form itself requires that it be surrendered upon departure. The 
presumption can be rebutted by evidence that the FAS citizen was not in 
the territory for a total of at least 365 days and has not established 
a continuing or lasting residence. If the FAS citizen can prove he or 
she made an entry elsewhere on a specific date, that will demonstrate 
that he or she was not in the territory between that date and the date 
of his or her next application for admission to the United States 
territory.
    The Service notes that the definition of ``habitual resident'' has 
been modified in this context in order to conform more closely to the 
definition of ``habitual residence'' found in section 461 of the 
Compacts. In particular, the Service notes that for an FAS citizen to 
be considered a habitual resident, he or she must have a continuing or 
lasting residence in the United States territory after an admission, 
including physical presence for a cumulative total of at least 365 
days. The fact that an FAS citizen may be a habitual resident does not 
necessarily render the FAS citizen inadmissible to the United States 
territory. For example, if the resident is self-supporting, he or she 
may not necessarily be inadmissible.
    Finally, organization of the final rule is different from that of 
the proposed rule in order to comply with the plain-language 
requirements currently used by Executive Branch agencies in drafting 
regulations.

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 a significant economic impact on a substantial number of 
small entities. This rule affects relatively small communities, 
primarily on Guam. Because the rule would require that the nonimmigrant 
be self-supporting in order to establish and maintain habitual 
residence in a territory or possession of the United States, the impact 
of the rule on the local economies should be positive.

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 one year, and it 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.

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 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. Accordingly, the Office of Management and Budget has waived 
its review process under section 6(a)(3)(A).

Executive Order 13132

    The regulation proposed 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 13132, it is determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
Summary Impact Statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, Foreign 
officials, Health professionals, Reporting and recordkeeping 
requirements, Students.

    Accordingly, part 214 of chapter I of title 8 of the Code of 
Federal Regulations is 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; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section 
141 of the Compacts of Free Association with the Federated States of 
Micronesia and the Republic of the Marshall Islands, and with the 
Government of Palau, 48 U.S.C. 1901, note, and 1931 note, 
respectively; 8 CFR part 2.


    2. Section 214.7 is added to read as follows:


Sec. 214.7  What is habitual residence in the territories and 
possessions of the United States and what are the consequences thereof?

    (a) Definitions. As used in this section, the term:
    (1) Compacts means the agreements of free association between the 
United States and the governments of the Republic of the Marshall 
Islands, the Federated States of Micronesia, and Palau, approved by 
Public Law 99-239 with respect to the governments of the Republic of 
the Marshall Islands and the Federated States of Micronesia, and by 
Public Law 99-658, with respect to Palau.
    (2) Freely associated states (FAS) means the following parts of the 
former Trust Territories of the Pacific Islands, namely, the Republic 
of the Marshall Islands, the Federated States of Micronesia, and Palau.
    (3) Territories and possessions of the United States means all 
territories and possessions of the United States to which the Act 
applies, including those commonwealths of the United States that are 
not States. It does not include American Samoa and the Commonwealth of 
the Northern Mariana Islands, as long as the Act does not apply to 
them.
    (4)(i) Habitual resident means a citizen of the FAS who has been 
admitted to a territory or possession of the United States (other than 
American Samoa or the Commonwealth of the Northern Mariana Islands, as 
long as the Act is not applicable to them) pursuant to section 141(a) 
of the Compacts and who occupies in such territory or possession a 
habitual residence as that term is defined in section 461 of the 
Compacts, namely a place of general abode or a principal, actual 
dwelling place of a continuing or lasting nature. The term ``habitual 
resident'' does not apply to:

[[Page 56466]]

    (A) A person who has established a continuing residence in a 
territory or possession of the United States, but whose cumulative 
physical presence in the United States amounts to less than 365 days; 
or
    (B) A dependent of a resident representative described in section 
152 of the Compacts; or
    (C) A person who entered the United States for the purpose of full-
time studies as long as such person maintains that status.
    (ii) Since the term ``habitual'' resident requires that the person 
have entered the United States pursuant to section 141(a) of the 
Compacts, the term does not apply to FAS citizens whose presence in the 
territories or possessions is based on an authority other than section 
141(a), such as:
    (A) Members of the Armed Forces of the United States described in 8 
CFR Sec. 235.1(c);
    (B) Persons lawfully admitted for permanent residence in the United 
States; or
    (C) Persons having nonimmigrant status whose entry into the United 
States is based on provisions of the Compacts or the Act other than 
section 141(a) of the Compacts.
    (5) Dependent means a citizen of the FAS, as defined in section 
141(a) of the Compacts, who:
    (i) Is a habitual resident;
    (ii) Resides with a principal habitual resident;
    (iii) Relies for financial support on that principal habitual 
resident; and
    (iv) Is either the parent, spouse, or unmarried child under the age 
of 21 of the principal habitual resident or the parent or child of the 
spouse of the principal habitual resident.
    (6) Principal habitual resident means a habitual resident with whom 
one or more dependents reside and on whom dependent(s) rely for 
financial support.
    (7) Self-supporting means:
    (i) Having a lawful occupation of a current and continuing nature 
that provides 40 hours of gainful employment each week. A part-time 
student attending an accredited college or institution of higher 
learning in a territory or possession of the United States receives for 
each college or graduate credit-hour of study a three-hour credit 
toward the 40-hour requirement; or
    (ii) If the person cannot meet the 40-hour employment requirement, 
having lawfully derived funds that meet or exceed 100 percent of the 
official poverty guidelines for Hawaii for a family unit of the 
appropriate size as published annually by the Department of Health and 
Human Services.
    (8) Receipt of unauthorized public benefits means the acceptance of 
public benefits by fraud or willful misrepresentation 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.
    (b) Where do these rules regarding habitual residence apply? The 
rules in this section apply to habitual residents living in a territory 
or possession of the United States to which the Act applies. Those 
territories and possessions are at present Guam, the Commonwealth of 
Puerto Rico, and the American Virgin Islands. These rules do not apply 
to habitual residents living in American Samoa or the Commonwealth of 
the Northern Mariana Islands, as long as the Act does not extend to 
them. These rules are not applicable to habitual residents living in 
the fifty States or the District of Columbia.
    (c) When is an arriving FAS citizen presumed to be a habitual 
resident? (1) An arriving FAS citizen will be subject to the rebuttable 
presumption that he or she is a habitual resident if the Service has 
reason to believe that the arriving FAS citizen was previously admitted 
to the territory or possession more than one year ago; and
    (2) That the arriving FAS citizen either;
    (i) Failed to turn in his or her Form I-94 when he or she 
previously departed from the United States; or
    (ii) Failed to apply for a replacement Form I-94.
    (d) What rights do habitual residents have? Habitual residents have 
the right to enter, reside, study, and work in the United States, its 
territories or possessions, in nonimmigrant status without regard to 
the requirements of sections 212(a)(5)(A) and 212(a)(7)(A) and (B) of 
the Act.
    (e) What are the limitations on the rights of habitual residents? 
(1) A habitual resident who is not a dependent is subject to removal if 
he or she:
    (i) Is not and has not been self-supporting for a period exceeding 
60 consecutive days for reasons other than a lawful strike or other 
labor dispute involving work stoppage; or
    (ii) Has received unauthorized public benefits by fraud or willful 
misrepresentation; or
    (iii) Is subject to removal pursuant to section 237 of the Act, or 
any other provision of the Act.
    (2) Any dependent is removable from a territory or possession of 
the United States if:
    (i) The principal habitual resident who financially supports him or 
her and with whom he or she resides, becomes subject to removal unless 
the dependent establishes that he or she has become a dependent of 
another habitual resident or becomes self-supporting; or
    (ii) The dependent, as an individual, receives unauthorized public 
benefits by fraud or willful misrepresentation; or
    (iii) The dependent, as an individual, is subject to removal 
pursuant to section 237 of the Act, or any other provision of the Act.

    Dated: September 12, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-23788 Filed 9-18-00; 8:45 am]
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