Termination of the Designation of Montserrat Under the Temporary Protected Status Program; Extension of Employment Authorization Documentation

AGENCY:

Bureau of Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

The designation of Montserrat under the Temporary Protected Status (TPS) Program will expire on August 27, 2004. After reviewing country conditions and consulting with the appropriate Government agencies, the Secretary of the Department of Homeland Security (DHS) has determined that conditions in Montserrat no longer support the TPS designation and is therefore terminating the TPS designation of Montserrat. This termination is effective February 27, 2005, six months from the end of the current extension. To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will automatically retain their TPS and have their current Employment Authorization Documents (EADs) extended until the effective termination date. However, an individual's TPS shall be withdrawn because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States. On February 27, 2005, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will no longer have TPS.

EFFECTIVE DATE:

The TPS designation of Montserrat is terminated effective February 27, 2005.

FOR FURTHER INFORMATION CONTACT:

Colleen Cook, Residence and Status Services, Office of Program and Regulations Development, Bureau of Citizenship and Immigration Services, Department of Homeland Security, 425 “I” Street, NW., ULLICO Building, Third Floor, Washington, DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Authority Does the Secretary of DHS Have to Terminate 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 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).

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. 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 the TPS designation, he shall terminate the designation, but such termination may not take effect earlier than 60 days after the date the Federal Register notice of termination is published. 8 U.S.C. 1254a(b)(3)(B). The Secretary of DHS may determine the appropriate effective date of the termination for the purpose of providing an orderly transition. 8 U.S.C. 1254a(d)(3).

Why Did the Secretary of DHS Decide to Terminate the TPS Designation for Montserrat as of February 27, 2005?

On August 28, 1997, the Attorney General published a notice in the Federal Register designating Montserrat under the TPS program based upon volcanic eruptions causing a substantial, but temporary, disruption to living conditions that rendered Montserrat unable, temporarily, to adequately handle the return of its nationals. 62 FR 45685, 45686 (August 28, 1997). The Attorney General also designated Montserrat for TPS due to extraordinary and temporary conditions that prevented Montserratians from safely returning to Montserrat. Id. Since then, the TPS designation of Montserrat has been extended six times, in each instance based upon a determination that the conditions warranting the designation continued to be met. See 68 FR 39106 (July 1, 2003); 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 most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Montserrat. In particular, DHS examined whether the conditions remain “temporary” as required in sections 244(b)(1)(B) and (C) of the Act. 8 U.S.C. 1254a(b)(1)(B) and (C). Under general rules of statutory construction, it is assumed that the legislative intent of Congress is expressed by the ordinary or plain meaning of a word. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). The plain meaning of “temporary” is “lasting for a time only; existing or continuing for a limited time; not permanent.” Webster's Revised Unabridged Dictionary (1998).

In making a determination, the Secretary of DHS considered country condition information provided by DOS and the BCIS Resource Information Center (RIC). Although the conditions in Montserrat continue to warrant concern, the Secretary has determined that the volcanic eruptions can no longer be considered temporary in nature. Scientists say that eruptions of the type that have occurred at Soufriere Hills generally last 20 years, but the volcano could continue to erupt sporadically for decades. RIC Report (May 2004).

According to the RIC, the July 2003 eruption was the largest eruption since the volcano emerged from dormancy in 1995. Id. In addition to affecting electricity supplies and telephone service, this eruption extensively damaged the island's water supply, agricultural sector, and fishery sector. Id. In March 2004, another major eruption sent a massive cloud of ash into the air and pyroclastic flows down the eastern flank of the Soufriere Hills volcano. Id. Volcanic ash settled on the ground up to four inches in places and left coatings of grit on surrounding Caribbean islands. Id. At present, fishing boats and other marine vessels are barred from entering an international maritime exclusion zone that covers a significant portion of the coastline. Id.

The island remains divided into a northern “safe zone” and a southern “exclusion zone.” Id. The exclusion zone, which is closed to the public, covers more than half of Montserrat. Id. As a result, many nationals of Montserrat remain unable to return to their homes in the southern part of the island. DOS Recommendation (June 8, 2004).

In addition to the prospect of volcanic destruction, returning residents possibly would be subject to contracting the lung disease silicosis and other health risks caused by ash that periodically covers much of the island. Id.

The RIC notes that, according to one study, eruptions of the type that have occurred at Soufriere Hills generally last 20 years, but the volcano could continue to erupt sporadically for decades. RIC Report. According to another study conducted by the Scientific Advisory Committee on Montserrat Volcanic Activity, there is only a 3.2% chance that this period of volcanic activity will stop within the next six months. Id. There is a 50% probability that the volcanic activity will last another 14-15 years, and a 5% chance that the volcanic activity will continue for over 180 years. Id.

Based upon this review, the Secretary of DHS, after consultation with appropriate government agencies, finds that Montserrat no longer continues to meet the conditions for designation under the TPS program. 8 U.S.C. 1254a(b)(3)(A). Because the volcanic eruptions are unlikely to cease in the foreseeable future, they can no longer be considered “temporary” as required by Congress when it enacted the TPS statute. 8 U.S.C. 1254a(b)(1)(B) and (C). Therefore, the Secretary of DHS is terminating the TPS designation for Montserrat effective February 27, 2005. 8 U.S.C. 1254a(b)(3)(B).

To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will automatically retain TPS and have their current EADs extended until the termination date. 8 U.S.C. 1254a(a)(2) and (d)(3). These persons are urged to use the time before termination of their TPS to prepare for and arrange their departure from the United States or, in the alternative, apply for other immigration benefits for which they are eligible.

If I Currently Have TPS Through the Montserrat TPS Program, do I Need to Re-Register to Keep my TPS until February 27, 2005, the Termination Date?

No. If you already have been granted TPS benefits through the Montserrat TPS program, you do not have to re-register to keep your TPS benefits. You will automatically retain TPS until the termination date. However, your TPS status shall be withdrawn pursuant to section 244(c)(3) of the Act because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States. 8 U.S.C. 1254a(c)(3), 8 CFR 244.14. When termination occurs on February 27, 2005, you will no longer have TPS.

Why is the Secretary of DHS Automatically Extending the Validity of EADs From August 27, 2004 to February 27, 2005?

The Secretary of DHS has decided to extend automatically the validity of EADs to provide for an orderly transition leading up to the effective date for the termination of the Montserrat TPS designation. Therefore, the validity of the applicable EADs is automatically extended for a period of six months, to February 27, 2005. 8 U.S.C. 1254a(a)(2) and (d)(3).

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 Montserrat (or an alien having no nationality who last habitually resided in Montserrat) who has applied for and received an EAD under the TPS designation of Montserrat. 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 August 27, 2004. 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 February 27, 2005?

No. Qualified individuals do not have to apply for this extension of their TPS-related EADs to February 27, 2005 because it is automatic.

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 an extension of their EADs by virtue of this Federal Register notice may present to their employer a TPS-related EAD as proof of identity and employment authorization until February 27, 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 February 27, 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 February 27, 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 February 27, 2005, employers of Montserrat TPS class members 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 will contain an expiration date of February 27, 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 February 27, 2005 expiration date will not be issued.

Employers should not request proof of Montserratian citizenship. Employers presented with an EAD that this Federal Register notice has extended automatically which 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 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 (Telecommunications Device for the Deaf or “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 may I do if Returning to Montserrat is not Possible or Preferable for me?

This notice terminates the designation of Montserrat for TPS. Nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) in the United States who believe returning to Montserrat is not possible or not preferable for them may be eligible to apply for another immigration status, such as Lawful Permanent Resident (LPR) or a non-immigrant classification. Eligibility for these and other immigration benefits is determined individually on a case-by-case basis. For information on eligibility and how to apply, visit the BCIS web site at http://uscis.gov or call the BCIS National Customer Service Center at 1-800-375-5283.

In addition, nationals of Montserrat are eligible to apply for British citizenship based upon their status as British Overseas Territory Citizens (BOTCs). As such, nationals of Montserrat have a claim to British citizenship, as do all Overseas Territory inhabitants. However, unlike all other BOTCs, as of August 28, 1996, the British government waived the requirement that nationals of Montserrat wait three years after establishing residence in the United Kingdom before becoming eligible for social benefits or treatment by the National Health Service. This provision is scheduled to remain in place through 2005, at which time it is slated for review.

How Does the Termination of TPS Affect Nationals of Montserrat who Currently Receive TPS Benefits?

After the termination of the TPS designation of Montserrat becomes effective on February 27, 2005, these 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.

Former TPS beneficiaries will no longer be eligible for a stay of removal or an EAD pursuant to TPS. TPS-related EADs will expire on February 27, 2005, and will not be renewed.

Termination of the TPS designation for Montserrat does not necessarily affect pending applications for other forms of immigration relief or protection, though former TPS beneficiaries will begin to accrue unlawful presence as of February 27, 2005 if they have not been granted any other immigration status or protection or if they have no pending application for certain benefits.

Notice of Termination of Designation of Montserrat Under the TPS Program

By the authority vested DHS under section 244(b)(3) of the Act, DHS has consulted with the appropriate Government agencies concerning conditions in Montserrat. 8 U.S.C. 1254a(b)(3)(A). Based on these consultations, DHS has determined that Montserrat no longer meets the conditions for designation of TPS under section 244(b)(1)(B) and 244(b)(1)(C) of the Act. 8 U.S.C. 1254a(b)(1)(B) and 8 U.S.C. 1254a(b)(1)(C).

Accordingly, DHS orders as follows:

(1) Pursuant to sections 244(b)(1)(B) and 244(b)(1)(C) of the Act, the TPS designation of Montserrat will terminate effective February 27, 2005, six months after the end of the current extension.

(2) DHS estimates that there are approximately 292 nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who currently receive TPS benefits.

(3) To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS under the Montserrat designation will automatically retain TPS until the February 27, 2005 termination date. However, an individual's TPS shall be withdrawn pursuant to section 244(c)(3) of the Immigration and Nationality Act and 8 CFR 244.14 because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States.

(4) TPS-related Employment Authorization Documents that expire on August 27, 2004, are extended automatically until February 27, 2005 for qualified nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat).

(5) Information concerning the termination of TPS for nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) will be available at local BCIS offices upon publication of this notice and through the BCIS National Customer Service Center at 1-800-375-5283. This information will also be published on the BCIS Web site at http://uscis.gov.