[Federal Register: July 6, 2004 (Volume 69, Number 128)]
[Notices]
[Page 40642-40645]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy04-54]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Citizenship and Immigration Services
[CIS No. 2314-04]
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.
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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
[[Page 40643]]
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However, an individual's TPS shall be withdrawn because of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
[[Page 40644]]
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
[[Page 40645]]
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.
Dated: June 25, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-15243 Filed 7-2-04; 8:45 am]
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