[Federal Register Volume 69, Number 212 (Wednesday, November 3, 2004)]
[Notices]
[Pages 64088-64091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24607]


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DEPARTMENT OF HOMELAND SECURITY

Citizenship and Immigration Services

[CIS No. 2332-04]
RIN 1615-ZA09


Extension of the Designation of Temporary Protected Status for 
Nicaragua; Automatic Extension of Employment Authorization 
Documentation for Nicaragua TPS Beneficiaries

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice.

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SUMMARY: The Temporary Protected Status (TPS) designation for Nicaragua 
will expire on January 5, 2005. This notice extends the designation of 
Nicaragua for 18 months, until July 5, 2006, and sets forth procedures 
necessary for nationals of Nicaragua (or aliens having no nationality 
who last habitually resided in Nicaragua) with TPS to re-register and 
to apply for an extension of their employment authorization documents 
(EADs) for the additional 18-month period. Re-registration is limited 
to persons who registered under the initial designation (which was 
announced on January 5, 1999) and also timely re-registered under each 
subsequent extension of the designation. Eligible aliens must also have 
maintained continuous physical presence in the United States since 
January 5, 1999, and continuous residence in the United States since 
December 30, 1998. Certain nationals of Nicaragua (or aliens having no 
nationality who last habitually resided in Nicaragua) who have not 
previously applied for TPS may be eligible to apply under the late 
initial registration provisions.
    Given the large number of Nicaraguans affected by this notice, the 
Department of Homeland Security (DHS) recognizes that many re-
registrants may not receive their new EADs until after their current 
EADs expire on January 5, 2005. Accordingly, this notice automatically 
extends the validity of EADs issued under Nicaragua TPS for six months 
until July 5, 2005, and explains how TPS beneficiaries and their 
employers may determine which EADs are automatically extended.

DATES: Effective Dates: The extension of TPS for Nicaragua is effective 
January 5, 2005, and will remain in effect until July 5, 2006. The 60-
day re-registration period begins November 3, 2004 and will remain in 
effect until January 3, 2005.

FOR FURTHER INFORMATION CONTACT: Colleen Cook, Residence and Status 
Services, Office of Programs and Regulations Development, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
425 I Street, NW., ULLICO Building, 3rd Floor, Washington, DC 20529, 
telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Authority Does the Secretary of DHS Have To Extend the Designation 
of TPS for Nicaragua

    On March 1, 2003, the functions of the Immigration and 
Naturalization Service (INS) transferred from the Department of Justice 
(DOJ) to DHS pursuant to the Homeland Security Act of 2002, Public Law 
107-296. The responsibilities for administering TPS held by INS were 
transferred to U.S. Citizenship and Immigration Services (USCIS).
    Under section 244 of the Immigration and Nationality Act (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. 8 U.S.C. 1254a(b)(1). 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). 8 U.S.C. 1254a(a)(1).
    Section 244(b)(3)(A) of the Act requires the Secretary of DHS to 
review, at least 60 days before the expiration of the TPS designation 
or any extension thereof, the conditions in a foreign state designated 
for TPS to determine whether the conditions for a TPS designation 
continue to be met and, if so, the length of an extension of the TPS 
designation. 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 determine that a foreign state (or part 
thereof) no longer meets the conditions for designation at least 60 
days before the designation is due to end, 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 Secretary of DHS Decide To Extend the TPS Designation for 
Nicaragua?

    On January 5, 1999, notice was published in the Federal Register at 
64

[[Page 64089]]

FR 524, designating Nicaragua for TPS due to the devastation resulting 
from Hurricane Mitch. The designation of Nicaragua for TPS subsequently 
has been subsequently extended four times, with notice of such 
determinations published in the Federal Register (65 FR 30440; 66 FR 
23271; 67 FR 2245; 68 FR 23748). The most recent notice was published 
in the Federal Register on May 5, 2003, and it is due to end on January 
5, 2005.
    Since the date of the most recent extension, DHS and the Department 
of State (DOS) have continued to review conditions in Nicaragua. Due to 
continued reconstruction of infrastructure damaged by Hurricane Mitch, 
the Secretary of DHS has determined that an 18-month extension of the 
TPS designation is warranted because Nicaragua remains unable, 
temporarily, to handle adequately the return of its nations. 8 U.S.C. 
1254a(b)(1)(B).
    DOS notes that ``the conditions that initially gave rise to the 
designation continue to exist.'' (DOS Recommendation (August 31, 
2004)). The USCIS Resource Information Center (RIC) reports that the 
Spanish organization Infancia sin Fronteras continues to provide food, 
medical care, and educational training to 12,000 children affected by 
Hurricane Mitch. (RIC Report (August 2004)).
    Reconstruction of infrastructure damaged by Hurricane Mitch 
continues. There is a shortage of potable water in the northwestern 
department of Chinandega, one of the areas hardest hit by Hurricane 
Mitch. Id. The Government of Canada has promised funding to build wells 
in three communities to address the lack of potable water. Id. Also in 
Chinandega, continued erosion related to Hurricane Mitch resulted in 
damage to 60% and loss of 4-7% of arable land. Id. There are continued 
efforts to lessen the risk of floods and mudslides in forty communities 
still vulnerable in the wake of Hurricane Mitch via efforts such as 
emergency drilling. Id. Nationwide, reconstruction of roads damaged by 
Mitch has been concentrated in urban areas. Id. However, roads in the 
Central Rural and Atlantic Rural regions have deteriorated. Id.
    Based upon this review, the Secretary of DHS, after consultation 
with appropriate Government agencies, finds that the conditions that 
prompted designation of Nicaragua for TPS continue to be met. 8 U.S.C. 
1254a(b)(3)(A). There continues to be a substantial, but temporary, 
disruption in living conditions in Nicaragua as the result of an 
environmental disaster, and Nicaragua continues to be unable, 
temporarily to handle adequately the return of its nationals. 8 U.S.C. 
1254a(b)(1)(B). On the basis of these findings, the Secretary of DHS 
concludes that the TPS designation for Nicaragua should be extended for 
an additional 18-month period. 8 U.S.C. 1254a(b)(3)(C).

If I Currently Have TPS Through the Designation of Nicaragua for TPS, 
Do I Still Register for TPS?

    Yes. If you already have received TPS benefits through the 
designation of Nicaragua for TPS, your benefits will expire on January 
5, 2005. Accordingly, individual TPS beneficiaries must comply with the 
re-registration requirements described below in order to maintain TPS 
benefits through July 5, 2006. TPS benefits include temporary 
protection against removal from the United States, as well as 
employment authorization, during the TPS designation period. 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 designation of 
Nicaragua who wish to maintain such status must apply for an extension 
by filing the following: (1) Form I-821, Application for Temporary 
Protected Status; (2) Form I-765, Application for Employment 
Authorization (see the chart below to determine whether you must submit 
the one hundred and seventy-five dollar ($175) filing fee with Form I 
765); and (3) a biometric services fee of seventy dollars ($70) if you 
are 14 or older, or if you are under 14 and requesting an EAD. The 
biometric services fee cannot be waived. 8 CFR. 103.2(e)(i), (iii). 
Unlike previous registration periods, TPS applicants need not submit 
photographs with the TPS application because a photograph will be taken 
when the alien appears at an Application Support Center (ASC) for 
collection of biometrics.
    An application submitted without the required fees will be returned 
to the applicant. Please note that Form I-821 has been revised and only 
the new form with Revision Date 7/30/04 will be accepted. Submissions 
of older versions of Form I-821 will be rejected. Submit the completed 
forms and applicable fee, if any, to the USCIS Chicago, IL Lockbox 
during the 60-day re-registration period that begins November 3, 2004 
and ends January 3, 2005. An interim EAD will not be issued unless the 
Form I-765, as part of the TPS registration package, has been pending 
with USCIS more than 90 days after all requested initial evidence has 
been received, including collection of the applicant's fingerprints at 
an ASC. See 8 CFR 103.2(b)(10)(ii) and 8 CFR 274a.13(d).

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                   If                                  Then
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You are applying for an EAD valid until  You must complete and file the
 July 5, 2006, regardless of your age.    Form I-765, Application for
                                          Employment Authorization, with
                                          the $175 fee.
You are not requesting an EAD, or are    You must complete and file Form
 applying under late initial              I-765 (for data-gathering
 registration provisions and are under    purposes only) with no fee.\1\
 age 14 or over age 65.
You are applying for an EAD and are      You must complete and file: (1)
 requesting a fee waiver.                 Form I-765 and (2) a fee
                                          waiver request and affidavit
                                          (and any other supporting
                                          information) in accordance
                                          with 8 CFR 244.20.
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\1\ An applicant who does not want an employment authorization document
  does not need to submit the $175 fee, but must still complete and
  submit Form I-765 for data gathering purposes.

Where Should an Applicant Submit His or Her Application to Re-Register 
or Late Initial Register for TPS?

    The Form I-821, Form I-765, fees, and all supporting documentation 
should be filed at the USCIS Chicago Lockbox at: U.S. Citizenship and 
Immigration Services, P.O. Box 87583, Chicago, IL 60680-0583. Or, for 
non-United States Postal Service (USPS) deliveries: U.S. Citizenship 
and Immigration Services, 427 S. LaSalle--3rd Floor, Chicago, IL 60605.
    Please note that this address is not the location where you have 
submitted your forms during previous re-registration periods. Aliens 
re-registering or late initial registering for TPS under the 
designation of Nicaragua should not sent their TPS forms and fees 
directly to

[[Page 64090]]

a USCIS Service Center or district office. Failure to follow these 
instructions may delay processing of your TPS re-registration 
application.

Who Must Submit the $175 Filing Fee for the Form I-765?

    Although all re-registrants must submit the Form I-765, only those 
applicants who are requesting an EAD, regardless of age, must submit 
the $175 filing fee or a fee waiver request pursuant to 8 CFR 244.20. 
Late initial registrants between the ages of 14 and 65, inclusive, who 
are requesting an EAD, must submit the $175 fee or a fee waiver request 
pursuant to 8 CFR 244.20. This requirement includes any individuals who 
do not need an EAD for employment or alien registration document 
purposes, but nevertheless choose to apply for an EAD for use solely as 
an identity document. Applicants who are submitting form I-765 only for 
data-gathering purposes are not required to submit a $175 filing fee, 
nor are they required to submit a fee waiver request.

Who Must Submit the $175 Biometric Services Fee?

    All re-registrants and late initial registrants 14 years of age and 
older must submit the $70 biometric services fee. In addition, any 
applicant under the age of 14 choosing to apply for an EAD must submit 
the $70 biometric services fee, as a photograph, signature, and 
fingerprint are required to produce the card. This fee will not be 
waived. 8 CFR 103.2(e)(4)(i), (iii).

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 Nicaragua (or an alien having no nationality who 
last habitually resided in Nicaragua) who has applied for and received 
an EAD under the TPS designation of Nicaragua. This automatic extension 
is limited to EADs bearing an expiration date of January 5, 2005, that 
were issued on either Form I-766, Employment Authorization Document, or 
Form I-688B, Employment Authorization Card. 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.''

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

    For completion of the Form I-9 at the time of hire or re-
verification, qualified individuals who have received a six-month 
extension of their EADs by virtue of this Federal Register notice may 
present to their employer a TPS-based EAD as proof of identity and 
employment authorization until July 5, 2005. 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 this Federal 
Register notice regarding the automatic extension of employment 
authorization documentation to July 5, 2005. 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 July 5, 2005 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 July 5, 2005, 
employers of Nicaraguan TPS beneficiaries whose EADs have been 
automatically extended by this notice must accept such EAD if 
presented. An EAD that has been automatically extended by this notice 
to July 5, 2005 will actually contain an expiration date of January 5, 
2005, and 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 July 5, 2005 expiration date will not be issued.
    Employers should not request proof of Nicaraguan citizenship. 
Employers presented with an EAD that has been extended pursuant to this 
Federal Register notice, if it appears to be genuine and appears to 
relate to the employee, should accept the EAD as a valid ``List A'' 
document and should not ask for additional Form I-9 documentation. This 
action by the Secretary of 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 USCIS Office of Business Liaison 
Employer Hotline at 1-800-357-2099 to speak to a USCIS 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.

May I Apply for Another Immigration Benefit While Registered for TPS?

    Yes. Registration for TPS does not prevent you from applying for 
another non-immigrant status, from filing for adjustment of status 
based on an immigrant petition, or from applying for any other 
immigration benefit or protection. 8 U.S.C. 1254a(a)(5). TPS alone, 
however, does not lead to lawful permanent residence. 8 U.S.C. 
1254a(e), (f)(1), (h). For the purposes of change of nonimmigrant 
status and adjustment of status, an alien is considered as being in, 
and maintaining, lawful status as a nonimmigrant during the period in 
which the alien is granted TPS. 8 U.S.C. 1254a(f)(4).

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. 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 Nicaragua (or Aliens Having No 
Nationality Who Last Habitually Resided in Nicaragua) Who Entered the 
United States After December 30, 1998, To File for TPS?

    No. This is a notice of an extension of the TPS designation of 
Nicaragua, not a notice re-designating Nicaragua for TPS. An extension 
of a TPS designation does

[[Page 64091]]

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 beyond the current TPS eligibility 
requirements for Nicaragua. To be eligible for benefits under this 
extension, nationals of Nicaragua (or aliens having no nationality who 
last habitually resided in Nicaragua) must have continuously resided in 
the United States since December 30, 1998 and been continuously 
physically present in the United States since January 5, 1999, the date 
of the initial designation of TPS for Nicaragua.

Are Certain Aliens Ineligible for TPS?

    Yes. There are certain criminal and terrorism-related 
inadmissibility grounds that render an alien ineligible for TPS. 8 
U.S.C. 1254a(c)(2)(A)(iii). Further, aliens who have been convicted of 
any felony or two or more misdemeanors committed in the United States 
are ineligible for TPS under section 244(c)(2)(B) of the Act, 8 U.S.C. 
254a(c)(2)(B), as are aliens described in the bars to asylum in section 
208(b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A).

What Is Late Initial Registration?

    Some persons may be eligible for late initial registration under 8 
U.S.C. 1254a(c)(1)(A)(iv) and 8 CFR 244.2(f)(2) and (g). To apply for 
late initial registration an applicant must:
    (1) Be a national of Nicaragua (or alien who has no nationality and 
who last habitually resided in Nicaragua);
    (2) Have continuously resided in the United States since December 
30, 1998;
    (3) Have been continuously physically present in the United States 
since January 5, 1999; 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 initial registration period (from January 5, 1999 to August 20, 
1999), 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) Is 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 described above. 8 CFR 244.2(g). All late 
initial registration applications for TPS pursuant to the TPS 
designation of Nicaragua should be submitted to the Lockbox address in 
Chicago, Illinois.

What Happens When This Extension of TPS Expires on July 5, 2006?

    At least 60 days before this extension of TPS designation of 
Nicaragua expires on July 5, 2006, the Secretary of DHS, after 
consultation with appropriate agencies of the Government, will review 
conditions in Nicaragua and determine whether the conditions for TPS 
designation continue to be met at that time, or whether the TPS 
designation should be terminated. 8 U.S.C. 1254a(b)(3). Notice of that 
determination, including the basis for the determination, will be 
published in the Federal Register.

Notice of Extension of Designation of TPS for Nicaragua

    By the authority vested in DHS under section 244(b)(1)(B), 
(b)(3)(A), and (b)(3)(C) of the Act, DHS has determined, after 
consultation with the appropriate Government agencies, that the 
conditions that prompted designation of Nicaragua for TPS continue to 
be met. Accordingly, DHS orders as follows:
    (1) The designation of Nicaragua under section 244(b)(1)(B) of the 
Act is extended for an additional 18-month period from January 5, 2005, 
to July 5, 2006. 8 U.S.C. 1254a(b)(3)(C).
    (2) There are approximately 4,309 nationals of Nicaragua (or aliens 
having no nationality who last habitually resided in Nicaragua) who 
have been granted TPS and who are eligible for re-registration.
    (3) To maintain TPS, a national of Nicaragua (or an alien having no 
nationality who last habitually resided in Nicaragua) who was granted 
TPS during the initial designation period and the subsequent extensions 
of this designation, or who was granted TPS during late initial 
registration, must re-register for TPS during the 60-day re-
registration period from November 3, 2004 until January 3, 2005.
    (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) a biometric services 
fee of seventy dollars ($70) if applicant is age 14 or older, or if 
applicant is under age 14, and
    (5) At least 60 days before this extension ends on July 5, 2006, 
the Secretary of DHS, after consultation with appropriate agencies of 
the Government, will review the designation of Nicaragua for TPS 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. 
Id.
    (6) Information concerning the extension of designation of 
Nicaragua for TPS will be available at local USCIS offices upon 
publication of this notice and on the USCIS Web site at http://uscis.gov.

    Dated: October 28, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-24607 Filed 11-1-04; 8:45 am]
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