[Federal Register Volume 68, Number 136 (Wednesday, July 16, 2003)]
[Notices]
[Pages 42071-42074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17872]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Citizenship and Immigration Services

[CIS No. 2279-03]
RIN 1615-AA04


Extension of the Designation of El Salvador Under Temporary 
Protected Status Program; Automatic Extension of Employment 
Authorization Documentation for El Salvador

AGENCY: Bureau of Citizenship and Immigration Services, Homeland 
Security.

ACTION: Notice.

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SUMMARY: The designation of El Salvador under the Temporary Protected 
Status (TPS) Program will expire on September 9, 2003. This notice 
extends the Secretary of Homeland Security's designation of El Salvador 
for 18 months until March 9, 2005, and sets forth procedures necessary 
for nationals of El Salvador (or aliens having no nationality who last 
habitually resided in El Salvador) with TPS to re-register and to apply 
for an extension of their employment authorization documentation for 
the additional 18-month period. Re-registration is limited to persons 
who registered under the initial designation (which ended on September 
9, 2002) and also timely re-registered under the extensions of 
designation. Certain nationals of El Salvador (or aliens having no 
nationality who last habitually resided in El Salvador) who previously 
have not applied for TPS may be eligible to apply under the late 
initial registration provisions.
    Given the large number of Salvadorans affected by this notice, the 
Department of Homeland Security (DHS) recognizes that many re-
registrants will not receive their new Employment Authorization 
Documents (EADs) until after their current EADs expire on September 9, 
2003. Accordingly, this notice automatically extends, until March 9, 
2004, the validity of EADs issued pursuant to the El Salvador TPS 
program, and explains how TPS beneficiaries or their employers may 
determine which EADs are automatically extended.

EFFECTIVE DATES: The extension of El Salvador's TPS designation is 
effective September 9, 2003, and will remain in effect until March 9, 
2005. The 60-day re-registration period begins July 16, 2003 and will 
remain in effect until September 15, 2003.

FOR FURTHER INFORMATION CONTACT: Jonathan Mills, Department of Homeland 
Security, Bureau of Citizenship and Immigration Services, 425 ``I'' 
Street, NW., Room 3040, Washington, DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Authority Does the Secretary of the Homeland Security Have To 
Extend the Designation of El Salvador Under the TPS Program?

    On March 1, 2003, the functions of the Immigration and 
Naturalization Service (Service) transferred from the Department of 
Justice to the Department of Homeland Security (DHS) pursuant to the 
Homeland Security Act of 2002,

[[Page 42072]]

Public Law 107-296. The responsibilities for administering the TPS 
program held by the Service were transferred to the Bureau of 
Citizenship and Immigration Services (BCIS) of the DHS.
    Under section 244 of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1254a, the Secretary of DHS, after consultation with 
appropriate agencies of the Government, is authorized to designate a 
foreign state or (part thereof) for TPS. The Secretary of DHS may then 
grant TPS to eligible nationals of that foreign state (or aliens having 
no nationality who last habitually resided in that state).
    Section 244(b)(3)(A) of the Act requires the Secretary of DHS to 
review, at least 60 days before the end of the TPS designation or any 
extension thereof, the conditions in a foreign state designated under 
the TPS program to determine whether the conditions for a TPS 
designation continue to be met and, if so, the length of an extension 
of TPS. (8 U.S.C. 1254a(b)(3)(A)). If the Secretary of DHS determines 
that the foreign state no longer meets the conditions for TPS 
designation, he shall terminate the designation, as provided in section 
244(b)(3)(B) of the Act (8 U.S.C. 1254a(b)(3)(B)). Finally, if the 
Secretary of DHS does not make the required determination prior to the 
60-day period prescribed by statute, section 244(b)(3)(C) of the Act 
provides for an automatic extension of TPS for an additional period of 
6 months (or, in the discretion of the Secretary of DHS, a period of 12 
or 18 months) (8 U.S.C. 1254a(b)(3)(C)).

Why Did the Attorney General Designate El Salvador for TPS?

    On March 9, 2001, the Attorney General initially designated El 
Salvador under the TPS program for a period of 18 months based upon a 
series of severe earthquakes that caused numerous fatalities and 
injuries and left 1.6 million people (over one-quarter of the country's 
population) without adequate housing. 66 FR 14214. Following the 
initial designation, the Departments of Justice (DOJ) and State (DOS) 
kept a close watch over the progress of reconstruction in El Salvador. 
Given the amount of reconstruction necessary, the Attorney General 
extended the El Salvador TPS designation on July 11, 2002 (67 FR 
46000).

Why Is the Secretary of DHS Extending the TPS Designation for El 
Salvador?

    After the extension of El Salvador's TPS designation on July 11, 
2002, DHS and DOS have continued to monitor the conditions in that 
country. Prior to making his decision to extend the El Salvador TPS 
designation, the Secretary of DHS consulted with relevant government 
agencies to determine whether conditions warranting the TPS designation 
continue to exist in El Salvador.
    Although El Salvador has made progress in its post-earthquake 
reconstruction effort, much work remains. (DOS Recommendation (April 
13, 2003)). As of April 2003, only one-third of the 170,000 homes 
destroyed by the earthquakes had been replaced. Id. More than three-
quarters of the damaged roads still need repair. Id. As of February 
2003, some rural health clinics have been rebuilt, but construction had 
not begun on other major health facilities. (BCIS Resource Information 
Center (RIC) (May 7, 2003)). The RIC reports that, in February 2003, 
the majority of damaged or destroyed schools targeted for 
reconstruction by USAID were still in the design phase. Id.
    The economy of El Salvador is not yet stable enough to absorb 
returnees from the United States should TPS not be extended. (DOS 
Recommendation). Returning Salvadorans would tax an already 
overburdened infrastructure that is currently incapable of providing 
for them at home. Id. A large number of returnees from the United 
States would not be able to find jobs or possibly housing, creating 
social unrest and exacerbating a critical crime situation and already 
dismal living conditions. Id. An extension will allow the approximately 
290,000 Salvadorans now with TPS to remain in the U.S. and continue 
sending home remittances, which have proven helpful in the recovery 
process. Id.
    Based upon this review, the Secretary of DHS finds that the 
conditions that prompted designation of El Salvador under the TPS 
program continue to be met (8 U.S.C. 1254a(b)(3)(C)). There continues 
to be a substantial, but temporary, disruption of living conditions in 
El Salvador as a result of environmental disaster, and El Salvador 
continues to be unable, temporarily, to handle adequately the return of 
its nationals (8 U.S.C. 1254a(b)(1)(B)(i)-(ii)). On the basis of these 
findings, the Secretary of DHS concludes that the TPS designation for 
El Salvador should be extended for an additional 18-month period.

If I Currently Have TPS Through the El Salvador TPS Program, Do I Still 
Re-register for TPS?

    Yes. If you already have received TPS benefits through the El 
Salvador TPS program, your benefits will expire on September 9, 2003. 
Accordingly, individual TPS beneficiaries must comply with the re-
registration requirements described below in order to maintain their 
TPS benefits through March 9, 2005. TPS benefits include temporary 
protection against removal from the United States, as well as work 
authorization, during the TPS designation period and any extension 
thereof (8 U.S.C. 1254a(a)(1)).

If I Am Currently Registered for TPS, How Do I Re-register for an 
Extension?

    All persons previously granted TPS under the El Salvador program 
who wish to maintain such status must apply for an extension by filing 
(1) a Form I-821, Application for Temporary Protected Status, without 
the filing fee; (2) a Form I-765, Application for Employment 
Authorization; and (3) two identification photographs (1\1/2\ inches x 
1\1/2\ inches). Applications submitted without the required fee and/or 
photos will be returned to the applicant. See the chart below to 
determine whether you must submit the one hundred and twenty dollar 
($120) filing fee with Form I-765. Applicants for an extension of TPS 
benefits do not need to be re-fingerprinted and thus need not pay the 
$50 fingerprint fee. Children beneficiaries of TPS who have reached the 
age of fourteen (14) but were not previously fingerprinted must pay the 
fifty dollar ($50) fingerprint fee with the application for extension.
    Submit the completed forms and applicable fee, if any, to the BCIS 
Service Center having jurisdiction over your place of residence during 
the 60-day re-registration period that begins July 16, 2003 and ends 
September 15, 2003.

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                If--                                Then--
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You are applying authorization       You must complete and file the Form
 until March 9, 2005.                 I-765, Application for employment
                                      for Employment Authorization, with
                                      the $120 fee.
You already have employment          You must complete and file Form I-
 authorization or do not require      765 with no fee.\1\
 employment authorization.

[[Page 42073]]

 
You are applying for emmployment     You must complete and file: (1)
 authorization and are requesting a   Form I-765 and (2) a fee waiver
 fee waiver.                          request and affidavit (and any
                                      other information) in accordance
                                      with 8 CFR 244.20.
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\1\ An applicant who does not seek employment authorization
  documentation does not need to submit the $120 fee, but must still
  complete and submit Form I-765 for data gathering purposes

If My Application for TPS is Still Pending, How Can I Renew My 
Employment Authorization Document?

    If your application for TPS is still pending and you wish to 
receive or renew your employment authorization document, you must file 
with the BCIS Service Center having jurisdiction over your place of 
residence (1) a Form I-821 without the filing fee, (2) a Form I-765 
Application for Employment Authorization, and (3) two identification 
photographs (1\1/2\ inches x 1\1/2\ inches). Applications submitted 
without the filing fee or photos will be returned to the applicant. See 
the chart above to determine whether you must submit the one hundred 
and twenty ($120) filing fee with Form I-765.

How Does an Application for TPS Affect My Application for Asylum or 
Other Immigration Benefits?

    An application for TPS does not affect an application for asylum or 
any other immigration benefit, and vice versa. Denial of an application 
for asylum or any other immigration benefit does not affect an 
applicant's TPS eligibility, although the grounds for denying one form 
of relief may also be grounds for denying TPS. For example, a person 
who has been convicted of a particularly serious crime is not eligible 
for asylum or TPS (8 U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. 
1254a(c)(2)(B)(ii)).

Does This Extension Allow Nationals of El Salvador (or Aliens Having No 
Nationality Who Last Habitually Resided in El Salvador) Who Entered the 
United States After February 13, 2001, to File for TPS?

    No. This is a notice of an extension of TPS, not a notice of re-
designation of El Salvador under the TPS program. An extension of TPS 
does not change the required dates of continuous residence and 
continuous physical presence in the United States. This extension does 
not expand TPS availability to those who are not already TPS class 
members. To be eligible for benefits under this extension, nationals of 
El Salvador (or aliens having no nationality who last habitually 
resided in El Salvador) must have resided continuously in the United 
States since February 13, 2001, and have been continuously physically 
present in the United States since March 9, 2001.

Who Is Eligible for Late Initial Registration?

    Some persons may be eligible for late initial registration under 8 
CFR 244.2(f)(2). To apply for late initial registration an applicant 
must:
    (1) Be a national of El Salvador (or alien who has no nationality 
and who last habitually resided in El Salvador);
    (2) Have been continuously physically present in the United States 
since March 9, 2001;
    (3) Have continuously resided in the United States since February 
13, 2001; and
    (4) Be both admissible as an immigrant, except as provided under 
section 244(c)(2)(A) of the Act, and not ineligible under section 
244(c)(2)(B) of the Act.
    Additionally, the applicant must be able to demonstrate that during 
the registration period from March 9, 2001, through September 9, 2002, 
he or she:
    (1) Was a nonimmigrant or had been granted voluntary departure 
status or any relief from removal;
    (2) Had an application for change of status, adjustment of status, 
asylum, voluntary departure, or any relief from removal or change of 
status pending or subject to further review or appeal;
    (3) Was a parolee or had a pending request for reparole; or
    (4) Was the spouse or child of an alien currently eligible to be a 
TPS registrant.
    An applicant for late initial registration must file an application 
for late registration no later than 60 days after the expiration or 
termination of the conditions previously described above (8 CFR 
244.2(g)).

Why Is the Secretary of DHS Automatically Extending the Validity of 
EADs From September 9, 2003, to March 9, 2004?

    The Secretary of DHS has decided to extend automatically the 
validity of EADs to prevent a lapse in employment authorization 
documentation for qualified re-registrants during the time that re-
registration applications are processed. Given the large number of El 
Salvador TPS class members who are eligible for re-registration, re-
registrants may receive their new EADs only after their current EADs 
have expired. To prevent a gap in employment authorization 
documentation for qualified re-registrants, the Secretary of DHS is 
extending automatically the validity of the applicable EADs for a 
period of 6 months, to March 9, 2004 (8 U.S.C. 1254a(a)(2); 
1254a(d)(1)-(2)).

Who Is Eligible To Receive an Automatic Extension of His or Her EAD?

    To receive an automatic extension of his or her EAD, an individual 
must be a national of El Salvador (or an alien having no nationality 
who last habitually resided in El Salvador) who has applied for and 
received an EAD under the initial TPS designation for El Salvador. This 
automatic extension is limited to EADs issued on either Form I-766 or 
Form I-688B bearing an expiration date of September 9, 2003. The EAD 
must also be either (1) a Form I-766 bearing the notation ``A-12'' or 
``C-19'' on the face of the card under ``Category'; or (2) a Form I-
688B bearing the notation ``274A.12(A)(12)'' or ``274A.12(C)(19)'' on 
the face of the card under ``Provision of Law'.

Must Qualified Individuals Apply for the Automatic Extension of Their 
TPS-Related EADs Until March 9, 2004?

    No, qualified individuals do not have to apply for this automatic 
employment authorization extension to March 9, 2004. However, qualified 
individuals must re-register for TPS during the re-registration period 
that begins on July 16, 2003, and continues through September 15, 2003, 
in order to be eligible for a new EAD that is valid until March 9, 
2005.

What Documents May a Qualified Individual Show to His or Her Employer 
as Proof of Employment Authorization and Identity When Completing the 
Employment Eligibility Verification Form (Form I-9)?

    For completion of the Form I-9 at the time of hire or re-
verification, qualified individuals who have received an extension of 
employment authorization by virtue of this Federal Register notice may 
present to their employer a TPS-related EAD as proof of identity and 
employment authorization until March 9, 2004. To minimize confusion 
over this extension at the time of hire or re-verification, qualified 
individuals may also present to their employer a copy of

[[Page 42074]]

this Federal Register notice regarding the automatic extension of 
employment authorization documentation to March 9, 2004. In the 
alternative, any legally acceptable document or combination of 
documents listed in List A, List B, or List C of the Form I-9 may be 
presented as proof of identity and employment eligibility; it is the 
choice of the employee.

How May Employers Determine Whether an EAD Has Been Automatically 
Extended Through March 9, 2004 and Is Therefore Acceptable for 
Completion of the Form I-9?

    For purposes of verifying identity and employment eligibility or 
re-verifying employment eligibility on the Form I-9 until March 9, 
2004, employers of El Salvador TPS class members whose employment 
authorization has been automatically extended by this notice must 
accept an EAD that contains an expiration date of September 9, 2003, To 
be eligible for the automatic extension, the EAD must be either (1) a 
Form I-766 bearing the notation ``A-12'' or ``C-19'' on the face of the 
card under ``Category'', or (2) a Form I-688B bearing the notation 
``274A.12(A)(12)'' or ``274A.12(C)(19)'' on the face of the card under 
``Provision of Law''. New EADs or extension stickers showing the March 
9, 2004 expiration date will not be issued.
    Employers should not request proof of Salvadoran citizenship. 
Employers presented with an EAD that this Federal Register notice has 
extended automatically, that appears to be genuine and that relates to 
the employee should accept the document as a valid ``List A'' document 
and should not ask for additional Form I-9 documentation. This action 
by the Secretary of the DHS through this Federal Register notice does 
not affect the right of an employee to present any legally acceptable 
document as proof of identity and eligibility for employment.
    Employers are reminded that the laws prohibiting unfair 
immigration-related employment practices remain in full force. For 
questions, employers may call the BCIS' Office of Business Liaison 
Employer Hotline at 1-800-357-2099 to speak to a BCIS representative. 
Also, employers may call the U.S. Department of Justice Office of 
Special Counsel for Immigration Related Unfair Employment Practices 
(OSC) Employer Hotline at 1-800-255-8155, or 1-800-362-2735 (TDD). 
Employees or applicants may call the OSC Employee Hotline at 1-800-255-
7688, or 1-800-237-2515 (TDD) for information regarding the automatic 
extension. Additional information is available on the OSC Web site at 
http://www.usdoj.gov/crt/osc/index.html.

What Happens When This Extension of TPS Expires on March 9, 2005?

    At least 60 days before this extension of TPS expires on March 9, 
2005, the Secretary of DHS will review conditions in El Salvador and 
determine whether the conditions for designation under the TPS program 
continue to be met at that time, or whether the TPS designation should 
be terminated. Notice of that determination, including the basis for 
the determination, will be published in the Federal Register.
    If the TPS designation is extended at that time, an alien who has 
received TPS benefits must re-register under the extension in order to 
maintain TPS benefits. If, however, the Secretary of DHS terminates the 
TPS designation, TPS beneficiaries will maintain the immigration status 
they had before TPS (unless that status had since expired or been 
terminated) or any other status they may have acquired while registered 
for TPS. Accordingly, if an alien had no lawful immigration status 
prior to receiving TPS and did not obtain any status during the TPS 
period, he or she will revert to that unlawful status upon termination 
of the TPS designation.

Notice of Extension of Designation of El Salvador Under the TPS Program

    By the authority vested in me as Secretary of DHS under sections 
244(b)(1)(B), (b)(3)(A), and (b)(3)(C) of the Act, I have consulted 
with the appropriate government agencies and determine that the 
conditions that prompted designation of El Salvador for TPS continue to 
be met (8 U.S.C. 1254a(b)(3)(A)). Accordingly, I order as follows:
    (1) The designation of El Salvador under section 244(b) of the Act 
is extended for an additional 18-month period from September 9, 2003, 
to March 9, 2005 (8 U.S.C. 1254a(b)(3)(C)).
    (2) There are approximately 290,000 nationals of El Salvador (or 
aliens having no nationality who last habitually resided in El 
Salvador) who have been granted TPS and who are eligible for re-
registration.
    (3) To maintain TPS, a national of El Salvador (or an alien having 
no nationality who last habitually resided in El Salvador) who received 
TPS during the initial designation period must re-register for TPS 
during the 60-day re-registration period from July 16, 2003 until 
September 15, 2003.
    (4) To re-register, the applicant must file the following: (1) Form 
I-821, Application for Temporary Protected Status; (2) Form I-765, 
Application for Employment Authorization; and (3) two identification 
photographs (1\1/2\ inches by 1\1/2\ inches). Applications submitted 
without the required fee and/or photos will be returned to the 
applicant. There is no fee for filing a Form I-821 as part of the re-
registration application. If the applicant requests employment 
authorization, he or she must submit one hundred and twenty dollars 
($120) or a properly documented fee waiver request, pursuant to 8 CFR 
244.20, with the Form I-765. An applicant who does not request 
employment authorization must nonetheless file Form I-765 along with 
Form I-821, but is not required to submit the fee. The fifty-dollar 
($50) fingerprint fee is required only for children beneficiaries of 
TPS who have reached the age of 14 but were not previously 
fingerprinted. Failure to re-register without good cause will result in 
the withdrawal of TPS (8 CFR 244.17(c)). Some persons who had not 
previously applied for TPS may be eligible for late initial 
registration under 8 CFR 244.2.
    (5) At least 60 days before this extension terminates on March 9, 
2005, the Secretary of DHS will review the designation of El Salvador 
under the TPS program and determine whether the conditions for 
designation continue to be met (8 U.S.C. 1254a(b)(3)(A)). Notice of 
that determination, including the basis for the determination, will be 
published in the Federal Register (8 U.S.C. 1254a(b)(3)(A)).
    (6) TPS-related Employment Authorization Documents that expire on 
September 9, 2003, are extended automatically until March 9, 2004, for 
qualified Salvadorans.
    (7) Information concerning the extension of designation of El 
Salvador under the TPS program will be available at local BCIS offices 
upon publication of this notice and on the BCIS Web site at http://www.bcis.gov/graphics/index.htm.

    Dated: July 9, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-17872 Filed 7-15-03; 8:45 am]
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