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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Notices]               
[Page 23748-23751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-91]                         


[[Page 23748]]

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

DEPARTMENT OF HOMELAND SECURITY

Bureau of Citizenship and Immigration Services

[CIS No. 2270-03]
RIN 1615-AA04

 
Extension of the Designation of Nicaragua Under Temporary 
Protected Status Program; Automatic Extension of Employment 
Authorization Documentation for Nicaraguans

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

ACTION: Notice.

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

SUMMARY: The designation of Nicaragua under the Temporary Protected 
Status (TPS) Program will expire on July 5, 2003. This notice extends 
the Secretary of Homeland Security's designation of Nicaragua for 18 
months until January 5, 2005, 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 documentation for 
the additional 18-month period. Re-registration is limited to persons 
who registered under the initial designation (which ended on August 20, 
1999) and also timely re-registered under the extensions of 
designation. Certain nationals of Nicaragua (or aliens having no 
nationality who last habitually resided in Nicaragua) who previously 
have not 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 will not receive their new Employment Authorization 
Documents (EADs) until after their current EADs expire on July 5, 2003. 
Accordingly, this notice automatically extends, until December 5, 2003, 
the validity of EADs issued pursuant to the Nicaragua TPS program, and 
explains how TPS beneficiaries or their employers may determine which 
EADs are automatically extended.

EFFECTIVE DATES: The extension of Nicaragua's TPS designation is 
effective July 5, 2003, and will remain in effect until January 5, 
2005. The 60-day re-registration period begins May 5, 2003 and will 
remain in effect until July 7, 2003.

FOR FURTHER INFORMATION CONTACT: Naheed Qureshi, 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 Department of Homeland 
Security Have To Extend the Designation of Nicaragua Under the TPS 
Program?

    On March 1, 2003, the Immigration and Naturalization Service (INS) 
transferred from the Department of Justice to the Department of 
Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, 
Public Law 107-296. The responsibilities for administering the TPS 
program were transferred to the Bureau of Citizenship and Immigration 
Services (BCIS).
    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 Honduras for TPS?

    On January 5, 1999, the Attorney General designated Nicaragua under 
the TPS program for a period of 18 months based on the severe flooding 
and mudslides caused by Hurricane Mitch (64 FR 524). The fierce storm 
that swept through the country killed more than 3,000 people, left 
150,000 people homeless, and washed away roads, bridges, schools, and 
hospitals (See BCIS Resource Information Center Report (April 2000)). 
Following the initial designation, the Departments of Justice (DOJ) and 
State (DOS) kept a close watch over the progress of reconstruction in 
Nicaragua and consulted with relevant government agencies regularly. 
Given the amount of reconstruction necessary, the Attorney General 
extended the Nicaragua TPS designation three times, on May 11, 2000, 
(65 FR 30440), May 8, 2001, (66 FR 23271), and May 3, 2002, (67 FR 
22454). Each decision to extend the TPS designation was made on the 
determination that the conditions that warranted the TPS designation 
initially continued to exist.

Why Did the Secretary of DHS Decide To Extend the TPS Designation for 
Nicaragua?

    After the extension of Nicaragua's TPS designation on May 3, 2002, 
the DHS and DOS have continued to monitor the conditions in that 
country. Prior to making his decision to extend the Nicaragua TPS 
designation, the Secretary consulted with relevant government agencies 
to determine whether conditions warranting the TPS designation continue 
to exist in Nicaragua. Although there are strong indications of 
progress in recovery efforts, recent droughts as well as flooding from 
Hurricane Michelle in 2001 have added to the humanitarian, economic, 
and social problems initially brought on by Hurricane Mitch in 1998, 
making the country unable, temporarily, to handle the return of 
approximately 6,000 nationals with TPS at this time.
    This assessment is consistent with a recent Department of State 
report finding that although a significant amount of reconstruction has 
been completed since Hurricane Mitch, Nicaragua is, ``seriously 
affected by a drought and Hurricane Michelle in 2001 causing further 
destruction and emergency conditions,'' and ``much remains to be 
done.'' Department of State Recommendation, March 25, 2003 (DOS 
Report). Such repeated environmental catastrophes have interrupted 
Nicaragua's ability to recover from Hurricane Mitch and, as a result, 
the country continues to lack the needed stability and infrastructure 
to support the return of its nationals. The BCIS Resource Information 
Center confirmed that a prolonged drought as well as flooding from 
Hurricane Michelle have compromised food security and disrupted 
reconstruction efforts. (RIC Report 2003.) Additionally, the Department 
of State reports that while significant reconstruction has

[[Page 23749]]

occurred, Nicaragua's reconstruction efforts have been hindered by 
delays in disbursements of aid needed to rebuild. (DOS Report.) Many of 
the European Union projects began only within the last year. Id. This 
delay in acquiring foreign aid prevented rapid completion of 
reconstruction. Hurricane Michelle and the drought exacerbated the 
situation. Consequently, the conditions under which Nicaragua was 
designated for TPS have not ceased to exist, and therefore, Nicaragua 
remains temporarily unable to handle adequately the return of its 
nationals.
    Based on this review, the Secretary of DHS finds that the 
conditions that prompted designation of Nicaragua 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 
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)(i)-(ii)). 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.

If I Currently Have TPS Through the Nicaragua TPS Program, Do I Still 
Re-Register for TPS?

    Yes. If you already have received TPS benefits through the 
Nicaragua TPS program, your benefits will expire on July 5, 2003. 
Accordingly, individual TPS beneficiaries must comply with the re-
registration requirements described below in order to maintain their 
TPS benefits through January 5, 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 My Initial Nicaragua TPS Application Is Pending, Do I Still Re-
Register for TPS?

    Yes. If your initial TPS application is still pending approval, you 
must re-register for TPS during the re-registration period in order to 
be eligible for this extension. See the following re-registration 
instructions.

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

    All persons previously granted TPS under the Nicaragua 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 
rejected. 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 May 5, 2003 and ends July 
1, 2003 (inclusive of such end date).

------------------------------------------------------------------------
                   If--                                Then--
------------------------------------------------------------------------
You are applying for employment             You must complete and file
 authorization until January 5, 2005.        the Form I-765, Application
                                             for Employment
                                             Authorization, with the
                                             $120 fee.
You already have employment authorization   You must complete and file
 or do not require employment                Form I-765 with no fee.\1\
 authorization.
You are applying for employment             You must complete and file:
 authorization and are requesting a fee      (1) Form I-765 and (2) a
 waiver.                                     fee waiver request and
                                             affidavit (and any other
                                             information) in accordance
                                             with 8 CFR 244.20.
------------------------------------------------------------------------
\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.

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); 8 U.S.C. 1254a(c)(2)(B)(i)).

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 TPS, not a notice of re-
designation of Nicaragua 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 
Nicaragua (or aliens having no nationality who last habitually resided 
in Nicaragua) must have resided continuously in the United States since 
December 30, 1998, and have been continuously physically present in the 
United States since January 5, 1999.

What Is 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 Nicaragua (or alien who has no nationality and 
who last habitually resided in Nicaragua);
    (2) Have been continuously physically present in the United States 
since January 5, 1999;
    (3) Have continuously resided in the United States since December 
30, 1998; 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 January 5, 1999, through 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) 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 within a 60-day period immediately following the 
expiration or termination of the conditions described above (8 CFR 
244.2(g)).

[[Page 23750]]

Why Is the Secretary of DHS Automatically Extending the Validity of 
EADs From July 5, 2003, to December 5, 2003?

    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 
Nicaraguan TPS class members who are eligible for re-registration, re-
registrants would 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 5 months, to December 5, 2003 (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 Nicaragua (or an alien having no nationality who 
last habitually resided in Nicaragua) who has applied for and received 
an EAD under the initial TPS designation for Nicaragua. This automatic 
extension is limited to EADs bearing an expiration date of July 5, 
2003, and the notation: ``A-12'' or ``C-19'' on the face of the card 
under ``Category'' for EADs issued on Form I-766 or ``274A.12(A)(12)'' 
or ``274A.12(C)(19)'' on the face of the card under ``Provision of 
Law'' for EADs issued on Form I-688B.
    TPS applicants who have not yet received their initial or 
provisional EAD, including those who apply after the date of this 
notice but before the re-registration period closes on July 5, 2003, 
may receive an EAD that facially expires on July 5, 2003. Such an EAD 
is covered by the automatic extension described above.

Must Qualified Individuals Apply for the Automatic Extension of Their 
TPS-Related EADs?

    No, qualified individuals do not have to apply for this automatic 
employment authorization extension to December 5, 2003. However, 
qualified individuals must re-register for TPS during the re-
registration period that begins on May 5, 2003, and continues through, 
July 7, 2003, in order to be eligible for a new EAD that is valid until 
January 5, 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 December 5, 2003. 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 December 5, 2003. 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 Which EADs That Have Been Automatically 
Extended Through December 5, 2003, Are 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 December 5, 
2003, employers of Nicaragua TPS class members whose employment 
authorization has been automatically extended by this notice must 
accept an EAD that contains an expiration date of July 5, 2003, and 
that bears one of the following notations: ``A-12'' or ``C-19'' on the 
face of the card under ``Category'' for EADs issued on Form I-766; or, 
``274A.12(A)(12)'' or ``274A.12(c)(19)'' on the face of the card under 
``Provision of Law'' for EADs issued on Form I-688B. New EADs or 
extension stickers showing the December 5, 2003, expiration date will 
not be issued.
    Employers should not request proof of Nicaraguan 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 January 5, 2005?

    At least 60 days before this extension of TPS expires on January 5, 
2005, the Secretary of DHS will review conditions in Nicaragua 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 Nicaragua 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 Nicaragua for TPS continue to 
be met (8 U.S.C. 1254a(b)(3)(A)). Accordingly, I order as follows:
    (1) The designation of Nicaragua under section 244(b) of the Act is 
extended for an additional 18-month period from July 5, 2003, to 
January 5, 2005 (8 U.S.C. 1254a(b)(3)(C)).

[[Page 23751]]

    (2) There are approximately 6,000 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 received TPS 
during the initial designation period must re-register for TPS during 
the 60-day re-registration period from May 5, 2003 until July 7, 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 rejected. There is no 
fee for filing a Form I-821 filed 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 January 5, 
2005, the Attorney General will review the designation of Nicaragua 
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 
July 5, 2003, are extended automatically until December 5, 2003, for 
qualified Nicaraguans.
    (7) Information concerning the extension of designation of 
Nicaragua 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.immigration.gov/graphics/index.htm
.

    Dated: April 29, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-10962 Filed 4-30-03; 10:31 am]
BILLING CODE 4410-10-P




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