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Notice

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

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

The Temporary Protected Status designation for El Salvador will expire on March 9, 2005. This notice extends the designation of El Salvador for 18 months, until September 9, 2006, 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 documents (EADs) for the additional 18-month period. Re-registration is limited to persons who registered under the initial designation announced on March 9, 2001 or who filed their first application for TPS under the late initial registration provisions at 8 CFR 244.2(f)(2) and also timely re-registered under each subsequent extension of the designation. Eligible aliens also must have maintained continuous physical presence in the United States since March 9, 2001, and continuous residence in the United States since February 13, 2001. Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who have not previously applied for temporary protected status 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 recognizes that many re-registrants may not receive their new employment authorization documents until after their current documents expire on March 9, 2005. Accordingly, this notice automatically extends the validity of employment authorization documents issued under the temporary protected status designation of El Salvador for 6 months, until September 9, 2005, and explains how temporary protected status beneficiaries and their employers may determine which employment authorization documents are automatically extended.

EFFECTIVE DATES:

The extension of temporary protected status for El Salvador is effective March 9, 2005, and will remain in effect until September 9, 2006. The 60-day re-registration period begins January 7, 2005, and will remain in effect until March 8, 2005.

Start Further Info

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, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone (202) 514-4754.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document.

Act—Immigration and Nationality Act

DHS—Department of Homeland Security

DOS—Department of State

EAD—employment authorization document

INS—Immigration and Naturalization Service

RIC—Resource Information Center

TPS—temporary protected status

USCIS—U.S. Citizenship and Immigration Services

What Authority Does the Secretary of DHS Have To Extend the Designation of TPS for El Salvador?

On March 1, 2003, the functions of the Immigration and Naturalization Service (INS) transferred from the Department of Justice (DOJ) to the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities for administering temporary protected status (TPS) held by the former 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).

At least 60 days before the expiration of the TPS designation or any extension thereof, section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, after consultation with appropriate agencies of the Government, the Start Printed Page 1451conditions 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 El Salvador?

On March 9, 2001, a notice was published in the Federal Register at 66 FR 14214, designating El Salvador for TPS due to the devastation resulting from a series of severe earthquakes. The designation of El Salvador for TPS subsequently has been extended twice, with notice of such determinations published in the Federal Register (67 FR 46000; 68 FR 42071). The most recent extension became effective on September 9, 2003, and is due to end on March 9, 2005.

Over the past year, DHS and the Department of State (DOS) have continued to review conditions in El Salvador. Due to ongoing reconstruction of infrastructure and housing damaged by the earthquakes, the Secretary of DHS has determined that an 18-month extension of the TPS designation is warranted because El Salvador remains unable, temporarily, to adequately handle the return of its nationals. 8 U.S.C. 1254a(b)(1)(B). On October 15, 2004, DOS submitted a memorandum to USCIS recommending the extension of TPS for El Salvador (the DOS Recommendation).

DOS notes that the 2001 earthquakes damaged or destroyed over 300,000 houses in El Salvador leaving more than 1.5 million people, a quarter of the country's population, without adequate housing. According to a report in October 2004 from the USCIS Resource Information Center (RIC Report), El Salvador's Vice-Ministry of Housing reported in July 2004 that 102,000 houses had been rebuilt or were under construction. Id. Construction of another 11,500 houses is due to begin soon. Id. DOS estimates that almost 50% of the people who lost housing during the earthquakes are still without permanent shelter. (DOS Recommendation).

The earthquakes also severely damaged or destroyed over 35% of the nation's schools. (RIC Report). Significant progress has been made in school reconstruction. Id. El Salvador's Ministry of Education reported in February 2004 that five percent of the schools damaged by the earthquakes still needed to be rebuilt. Id. Nevertheless, over 250 schools still require repair at a cost of approximately $21.7 million. (DOS Recommendation).

The pace of reconstruction of health infrastructure has been slower. The earthquakes caused severe damage to 55% of the nation's health infrastructure. (RIC Report). While the Government of El Salvador has made significant progress in the reconstruction of health centers, virtually no progress has been made in the reconstruction of hospitals. (DOS Recommendation). A World Bank loan for the reconstruction of hospitals was made available in 2004. Id. The Government of El Salvador expects to complete hospital reconstruction in 2007. Id., (RIC Report).

Based upon this review, the Secretary of DHS, after consultation with appropriate Government agencies, finds that the conditions that prompted the designation of El Salvador 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 El Salvador as the result of an environmental disaster, and El Salvador remains 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 El Salvador should be extended for an additional 18-month period. 8 U.S.C. 1254a(b)(3)(C).

If I currently have benefits through the TPS designation of El Salvador, should I re-register for TPS?

Yes. If you already have received benefits through the TPS designation of El Salvador, your benefits will expire on March 9, 2005. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain TPS benefits through September 9, 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 under the extension?

All persons previously granted TPS under the designation of El Salvador who wish to maintain such status must re-register under the extension by filing the following: (1) Form I-821, Application for Temporary Protected Status, without fee; (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 service fee of seventy dollars ($70) if you are 14 or older, or if you are under 14 and requesting an employment authorization document (EAD). The biometric service fee will not be waived. 8 CFR 103.2(e)(4)(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. Aliens who have previously registered for TPS but whose applications remain pending should follow these instructions if they wish to renew their TPS benefits.

An application submitted without the required fees will be returned to the applicant. Please note that Form I-821 has been revised and the new form has a Revision Date of 11/5/04. The previous revision of Form I-821, with Revision Date 7/30/04, will be accepted through January 3, 2005. Applicants submitting the earlier revision of Form I-821 should submit their application materials as outlined in this Federal Register notice. After January 3, 2005, only the new form with Revision Date 11/05/04 will be accepted. Submissions of older versions of Form I-821 will be rejected. Unlike previous registration periods, all applications for re-registration and late-initial registration are to be submitted, with applicable fees, to the USCIS Lockbox in Chicago, Illinois as outlined in this Federal Register notice, during the 60-day re-registration period that begins January 7, 2005, and ends March 8, 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 biometrics at an ASC. See 8 CFR 103.2(b)(10)(ii) and 8 CFR 274a.13(d). Start Printed Page 1452

Where can I obtain a copy of the new Form I-821 dated 11/5/04?

TPS forms are available from the toll-free USCIS Forms line, 1-800-870-3676, from your local USCIS district office, or from the USCIS Web site: http://uscis.gov.

Who must submit the $175 filing fee for the Form I-765?

Although all re-registrants must submit the Form I-765, those re-registrants and aliens renewing an EAD, regardless of age, must submit the $175 filing fee or a properly documented fee waiver request pursuant to 8 CFR 244.20. Persons between the ages of 14 and 65 (inclusive) filing under the late initial registration provisions who are requesting an EAD must also submit the $175 fee or a fee waiver request pursuant to 8 CFR 244.20. Aliens who are submitting Form I-765 only for data-gathering purposes (as explained in the chart below) are not required to submit a $175 filing fee, nor are they required to submit a fee waiver request.

If:Then:
You are re-registering for or renewing a TPS-related EAD, regardless of your ageYou must complete and file the Form I-765, Application for Employment Authorization, with the $175 fee or a fee waiver request in accordance with 8 CFR 244.20.
You are not requesting an EADYou must complete and file Form I-765 (for data-gathering purposes only) with no fee.1
You are applying for a TPS-related EAD under the late initial registration provisions and are under age 14 or over age 65You must complete and file Form I-765 (for data-gathering purposes only) with no fee.
1 An applicant who does not want an EAD does not need to submit the $175 fee, but must complete and submit Form I-765 for data-gathering purposes.

Who must submit the $70 biometric service fee?

All aliens 14 years of age and older who are re-registering for TPS, renewing temporary treatment benefits, or late initial registering must submit the $70 biometric service fee. In addition, any applicant under the age of 14 choosing to apply for an EAD must submit the $70 biometric service fee, as a photograph, signature, and fingerprint are required to produce the EAD. The biometric service fee will not be waived. 8 CFR 103.2(e)(4)(i), (iii).

Where should an applicant submit his or her application to re-register, late initial register, or renew temporary treatment benefits?

If you are re-registering and have previously filed with the Vermont Service Center, 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 6943, Chicago, IL 60680-6943.

Or, for non-United States Postal Service (USPS) deliveries: U.S. Citizenship and Immigration Services, Attn: TPS/VSC, 427 S. LaSalle—3rd Floor, Chicago, IL 60605.

If you are re-registering and have previously filed with either the California Service Center, Texas Service Center, or Nebraska Service Center or if you are filing a late initial registration, 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, Attn: TPS El Salvador, P.O. Box 87583, Chicago, IL 60680-0583.

Or, for non-United States Postal Service (USPS) deliveries: U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, 427 S. LaSalle—3rd Floor, Chicago, IL 60605.

Please note that this is not the location where you have submitted your forms during previous re-registration periods. Also, there are two different P.O. Boxes listed. Failure to use the appropriate P.O. Box may delay processing your TPS application. Aliens re-registering or late initial registering for TPS under the designation of El Salvador should not send their TPS forms and fees directly to a USCIS Service Center or district office. Failure to follow these instructions may delay processing of your TPS application.

Aliens re-registering for TPS under the designation of El Salvador during the re-registration period from January 7, 2005, to March 8, 2005, may file the Form I-821, I-765 and fees electronically by using E-filing at the USCIS Web site, www.uscis.gov. In order to properly re-register using E-filing, aliens must start the electronic filing with Form I-821, and the system will then link the alien to Form I-765 once Form I-821 is complete. Aliens re-registering for TPS after March 8, 2005, or aliens late initial registering may not file electronically, and must send their application materials to the USCIS Chicago Lockbox. Failure to follow these instructions may result in an incomplete filing and delay processing of your TPS application.

Who is eligible to receive an automatic extension of his or her EAD from March 9, 2005 to September 9, 2005?

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 TPS designation of El Salvador and who has not had TPS withdrawn or denied. This automatic extension is limited to EADs issued on either Form I-766, Employment Authorization Document, or Form I-688B, Employment Authorization Card, bearing an expiration date of March 9, 2005. 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 6 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 September 9, 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 September 9, 2005. In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Start Printed Page 1453Form 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 September 9, 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 September 9, 2005, employers of Salvadoran 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 September 9, 2005 will actually contain an expiration date of March 9, 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 September 9, 2005 expiration date will not be issued.

Employers should not request proof of Salvadoran citizenship. Unless put on notice that an employee is unauthorized to work, 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 and that this notice does not supersede or in any way limit applicable employment verification rules and policy guidance. 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.

Does TPS lead to lawful permanent residence?

No. TPS is a temporary benefit that does not lead to lawful permanent residence or by itself confer any other immigration status. 8 U.S.C. 1254a(e), (f)(1), (h). When a country's TPS designation is terminated, TPS beneficiaries will maintain the same immigration status they held prior to TPS (unless that status has since expired or been terminated), or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will revert to unlawful status upon the termination of the TPS designation. Once the Secretary determines that a TPS designation should be terminated, aliens who had TPS under that designation are expected to plan for their departure from the United States and may wish to apply for immigration benefits for which they may be eligible.

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). 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 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 the TPS designation of El Salvador, not a notice re-designating El Salvador for TPS. An extension of a TPS designation 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 beyond the current TPS eligibility requirements for El Salvador. 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 continuously resided in the United States since February 13, 2001, and been continuously physically present in the United States since March 9, 2001, the date of the initial designation of TPS for El Salvador.

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. 1254a(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 El Salvador (or alien who has no nationality and who last habitually resided in El Salvador);

(2) Have continuously resided in the United States since February 13, 2001;

(3) Have been continuously physically present in the United States since March 9, 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 initial registration period (from March 9, 2001 to September 9, 2002), he or she:

(1) Was a nonimmigrant or had been granted voluntary departure or any relief from removal; Start Printed Page 1454

(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 extension of El Salvador should be submitted to the USCIS Chicago Lockbox.

What happens when this extension of TPS expires on September 9, 2006?

At least 60 days before this extension of TPS designation for El Salvador expires on September 9, 2006, the Secretary of DHS, after consultation with appropriate agencies of the Government, will review conditions in El Salvador 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 El Salvador

By the authority vested in DHS under sections 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 El Salvador for TPS continue to be met. Accordingly, DHS orders as follows:

(1) The designation of El Salvador under section 244(b)(1)(B) of the Act is extended for an additional 18-month period from March 9, 2005, to September 9, 2006. 8 U.S.C. 1254a(b)(3)(C).

(2) There are approximately 248,282 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 was granted TPS during the initial designation period (or through late initial registration) and who re-registered during the subsequent extensions of this designation, must re-register for TPS during the 60-day re-registration period from January 7, 2005, until March 8, 2005.

(4) To re-register, the alien must file the following: (1) Form I-821, Application for Temporary Protected Status, without fee; (2) Form I-765, Application for Employment Authorization; and (3) a biometric services fee of seventy dollars ($70) if the alien is age 14 or older, or if the alien is under age 14 and requesting an employment authorization document. Applications submitted without the required fees will be returned to the applicant. If the alien requests an EAD, he or she must submit one hundred and seventy-five dollars ($175) or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with the Form I-765. An alien who does not request employment authorization must still file Form I-765 along with Form I-821, but he or she is not required to submit the fee or a fee waiver request for filing Form I-765. Failure to re-register without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C). Aliens who have previously registered for TPS but whose applications remain pending should follow these instructions to renew temporary treatment benefits. 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 ends on September 9, 2006, the Secretary of DHS, after consultation with appropriate agencies of the Government, will review the designation of El Salvador 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 El Salvador for TPS will be available at local USCIS offices upon publication of this notice and on the USCIS Web site at http://uscis.gov.

Start Signature

Dated: December 29, 2004.

Tom Ridge,

Secretary of Homeland Security.

End Signature End Supplemental Information

[FR Doc. 05-441 Filed 1-6-05; 8:45 am]

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