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.

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, 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 (11/2 inches x 11/2 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.

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 (11/2 inches x 11/2 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 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 (11/2 inches by 11/2 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.