Extension of the Designation of Montserrat Under Temporary Protected Status Program

AGENCY:

Bureau of Citizenship and Immigration Services, Homeland Security.

ACTION:

Notice.

SUMMARY:

The designation of Montserrat under the Temporary Protected Status (TPS) Program will expire August 27, 2003. This notice extends the designation of Montserrat for 12 months until August 27, 2004, and sets forth procedures necessary for nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) with TPS to re-register and to apply for an extension of their employment authorization documentation for the additional 12-month period. Re-registration is limited to persons who registered under the initial designation, which ended on August 27, 1998, and also timely re-registered under the extensions of designation. Certain nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions.

EFFECTIVE DATES:

The extension of Montserrat's TPS designation is effective August 27, 2003, and will remain in effect until August 27, 2004. The 60-day re-registration period begins July 1, 2003, and will remain in effect until September 2, 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 Department of Homeland Security Have To Extend the Designation of Montserrat 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 held by the Service 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 Secretary of DHS Decide To Extend the TPS Designation for Montserrat?

On August 28, 1997, the Attorney General designated Montserrat under the TPS program for a period of 12 months due to volcanic eruptions that affected the entire island and its residents. 62 FR 45685. The Attorney General extended Montserrat's TPS designation five times, determining each time that the conditions warranting such designation continued to be met. See 67 FR 47002 (July 17, 2002); 66 FR 40834 (August 3, 2001); 65 FR 58806 (October 2, 2000); 64 FR 48190 (September 2, 1999); 63 FR 45864 (August 27, 1998).

Since the date of the last extension, the Departments of Homeland Security and State have continued to review conditions in Montserrat. A 12-month extension is warranted due to the threat of further volcanic activity, serious health risks from hazardous ash, and lack of infrastructure, including no functioning airport.

Citing recommendations made by the September 2002 Montserrat Volcano Risk Assessment Panel and a late December 2002 appraisal of the situation, the Department of State reports that persons who were evacuated from their homes because of volcanic eruptions that occurred in 1997 are still unable to safely return. DOS Recommendation for the Extension of TPS (May 9, 2003). The amount of magma in the volcano continues to grow, as does its lava dome. Id. Volcanic threats to many areas surrounding the volcano have increased since the most recent Hazard and Risk Assessment, which occurred in October 2002. Id. As a result, the government of Montserrat expanded the “exclusion zone” of the island. BCIS Resource Information Center (May 5, 2003). The southern two-thirds of the island is buried in volcanic material and uninhabitable. Id.

The Department of State further notes that emergency measures remain in place in Montserrat. DOS Recommendation for Extension of TPS. A lack of infrastructure, including no functioning airport, continues to exist. Id. Two-thirds of the pre-eruption population of 12,000 has left the island. Id. Unemployment is high and few jobs remain outside of construction, most of which is aimed at making the north end of the island habitable for those who remain. Id. A de facto capital has been built in the village of Salem, but the government continues to operate out of makeshift quarters. BCIS Resource Information Center.

Based upon this review, the Secretary of DHS, after consultation with appropriate Government agencies, finds that the conditions that prompted designation of Montserrat 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 Montserrat as the result of an environmental disaster, and Montserrat 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 Montserrat should be extended for an additional 12-month period.

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

Yes. If you already have received TPS benefits through the Montserrat TPS program, your benefits will expire on August 27, 2003. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain their TPS benefits through August 27, 2004. 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 Montserrat 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 district office having jurisdiction over your place of residence during the 60-day re-registration period that begins July 1, 2003, and ends September 2, 2003 (inclusive of such end date).

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 vise 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 Montserrat (or Aliens Having No Nationality Who Last Habitually Resided in Montserrat) Who Entered the United States After August 28, 1997, To File for TPS?

No. This is a notice of an extension of TPS, not a notice of re-designation of Montserrat 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 Montserrat (or aliens having no nationality who last habitually resided in Montserrat) must have resided continuously in the United States since August 22, 1997, and have been continuously physically present in the United States since August 28, 1997.

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 Montserrat (or alien who has no nationality and who last habitually resided in Montserrat);

(2) Have been continuously physically present in the United States since August 28, 1997;

(3) Have continuously resided in the United States since August 22, 1997; 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 August 28, 1997, through August 27, 1998, 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 described above (8 CFR 244.2(g)).

What Happens When This Extension of TPS Expires on August 27, 2004?

At least 60 days before this extension of TPS expires on August 27, 2004, the Secretary of DHS will review conditions in Montserrat 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 Montserrat 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 Montserrat for TPS continue to be met (8 U.S.C. 1254a(b)(3)(A)). Accordingly, I order as follows:

(1) The designation of Montserrat under section 244(b) of the Act is extended for an additional 12-month period from August 27, 2003, to August 27, 2004 (8 U.S.C. 1254a(b)(3)(C)).

(2) There are approximately 325 nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS and who are eligible for re-registration.

(3) To maintain TPS, a national of Montserrat (or an alien having no nationality who last habitually resided in Montserrat) who received TPS during the initial designation period must re-register for TPS during the 60-day re-registration period from July 1, 2003, until September 2, 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 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. Child beneficiaries of TPS who have reached the age of 14 but were not previously fingerprinted are required to pay a fifty-dollar ($50) fingerprint fee. 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 August 27, 2004, the Secretary will review the designation of Montserrat 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) Information concerning the extension of designation of Montserrat 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 .