(U.S. 9th Cir) In a prosecution for reentry following removal from the U.S., the dismissal of the indictment is affirmed where the order instructing defendant to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure.
Archive for the ‘Reform/New Laws’ Category
Aliens have the right to know their remedies
Tuesday, March 9th, 2010Attorneys are debt relief agencies under BAPCPA
Tuesday, March 9th, 2010In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit’s order rejecting the district court’s conclusion that attorneys are not “debt relief agencies” under BAPCPA, upholding application of BAPCPA’s disclosure requirements to attorneys; and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528’s requirements were reasonably related to the government’s interest in preventing consumer deception. However, the court of appeals’ order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.
OFAC has updated Cuba Service Providers
Monday, March 8th, 2010OFAC has released a periodic update of the list of Cuba Service Providers . Please note the summary of changes at the end of the document to see, for example, which Service Providers are newly added to the list.
Treasury Amends Cuban Assets Control Regulations
Tuesday, March 2nd, 2010The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) today issued a final rule amending the Cuban Assets Control Regulations, 31 C.F.R. Part 515 (CACR), to implement the President’s initiative of April 13, 2009, to reach out to the Cuban people in support of their desire to freely determine their country’s future, promote greater contact between separated family members in the United States and Cuba, and increase the flow of remittances and information to the Cuban people.
Today’s amendments to the CACR change the rules in three major areas: (1) family visits; (2) family remittances; and (3) telecommunications. These amendments also make certain technical and conforming changes to the CACR.
Family visits. OFAC has eased restrictions on travel-related transactions for visits to “close relatives” who are nationals of Cuba by issuing a general license.
Travelers may visit “close relatives” (including, for example, aunts, uncles,cousins, and second cousins) who are nationals of Cuba.
There is no limit on the duration of a visit to these “close relatives.”
There is no limit on the frequency of visits to these “close relatives.”
Authorized expenditure limits for travel within Cuba have been increased to match the expenditures allowed for all other authorized categories of travel to Cuba — specifically, the current State Department “per diem rate” for Havana (for use anywhere in Cuba) plus amounts for additional transactions directly incident to visiting close relatives in Cuba. The current “maximum per diem rate” is $179. For future updates to this rate, travelers may check the Department of State’s Office of Allowances web site (http://aoprals.state.gov).
Travelers may be accompanied by persons who share a common dwelling as a family with them.
Remittances. OFAC has also eased restrictions on remittances (including from inherited blocked accounts) to “close relatives” who are nationals of Cuba by issuing a general license.
Persons subject to the jurisdiction of the United States may send remittances to “close relatives” (including, as noted above, aunts, uncles, cousins, and second cousins) who are nationals of Cuba. These amendments do not affect the prohibition on remittances to a “prohibited official of the Government of Cuba” or a “prohibited member of the Cuban Communist Party,” as defined in the CACR.
There is no limit on the amount of such a remittance.
There is no limit on the frequency with which persons subject to the jurisdiction of the United States may send such remittances.
Authorized family travelers may carry up to $3,000 of such remittances to Cuba.
Remittances for emigration-related purposes continue to be subject to separate restrictions.
Remittances may be made from depository institutions. To facilitate this, depository institutions are permitted to set up testing arrangements and exchange authenticator keys with Cuban financial institutions.
Telecommunications. Certain telecommunications services, contracts, related payments, and travel-related transactions are authorized by general licenses. The CACR amendments ease the telecommunications rules in three broad areas, as well as allow travel-related transactions for the specific purpose of conducting business in all three areas.
Persons subject to U.S. jurisdiction may contract with and pay non-Cuban telecommunications services providers to provide services to particular individuals in Cuba (other than prohibited officials of the Government of Cuba or prohibited members of the Cuban Communist Party, as defined in the CACR). For example, an individual in the United States may contract with and pay a U.S. or third-country telecommunications company to provide cellular telephone service for a phone owned and used by that individual’s friend in Cuba. Moreover, a U.S. telecommunications services provider may enter into a contract with a particular individual in Cuba to provide telecommunications services to that individual.
Telecommunications services providers that are persons subject to U.S. jurisdiction are generally licensed (1) to make payments incident to the provision of telecommunications services between the United States and Cuba and the provision of satellite radio or satellite television services to Cuba and (2) to enter into and perform (including making payments) under roaming services agreements with telecommunications services providers in Cuba.
Transactions incident to establishing facilities to provide telecommunications services linking the United States and Cuba, including fiber-optic cable and satellite facilities, are authorized by general license. The Bureau of Industry and Security of the U.S. Department of Commerce licenses the exportation and re-exportation of goods and technology for the establishment of telecommunications facilities linking the United States and Cuba.
Two general licenses have been added authorizing, with certain conditions, travel-related transactions incident to authorized telecommunications transactions. One of these licenses authorizes, with certain conditions, travel transactions incident to the commercial export of telecommunications-related items that have been authorized by the Department of Commerce. The second license authorizes travel transactions incident to participation in telecommunications-related professional meetings.
New general license for TSRA travel-related transactions. The new amendments to the CACR also implement provisions of the Omnibus Appropriations Act, 2009. Pursuant to section 620 of the Omnibus Appropriations Act, 2009, which amended the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), there is a new general license for travel-related transactions incident to agricultural and medical sales under TSRA.
This new general license authorizes, with certain conditions, travel-related transactions that are directly incident to the commercial marketing, sales negotiation, accompanied delivery, or servicing in Cuba of agricultural commodities, medicine, or medical devices that appear consistent with the Department of Commerce’s export or reexport licensing policy.
A traveler may rely on this general license if he or she is regularly employed by a producer or distributor of the agricultural or medical items or by an entity duly appointed to represent such a producer or distributor, and if that traveler’s schedule of activities is consistent with a full work schedule.
Under the new general license, written reports must be submitted to OFAC at least 14 days before departure for Cuba and within 14 days of return.
USCIS Changes filing locations for I-485 & I-360
Friday, February 26th, 2010USCIS has once again changed filing locations for some of it’s most popular applications and petitions. Please double check before you file.
Beginning February 25, 2010, most applicants must submit Form I-485 to a USCIS Lockbox
facility, depending on the eligibility category under which they are filing, as provided in the form
instructions. USCIS Service Centers will forward all Form I-485 applications to the appropriate
Lockbox facility until March 29, 2010. USCIS will accept previous versions of Form I-485 until
March 29, 2010. After March 29, 2010, USCIS will only accept the Form I-485 dated “12/03/09.”Any
previous versions of the the form that are submitted will be rejected. After the transitional period,
the Service Centers will return any incorrectly filed Form I-485 with instructions to send the
application to the correct location.
At this time, applicants should not concurrently file Form I-485 with an Immigrant Petition for Alien
Worker (Form I-140) at a USCIS Lockbox facility. Refer to the Form I-140 filing Instructions for
information on how to file forms concurrently.
When filing Form I-485 at a Lockbox facility, you may elect to receive an email and/or text message
notifying you that USCIS has accepted your application. To receive notification, you must complete
an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of
your application.
Revised Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, and Revised Filing Locations
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced that it has
posted a revised Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). The new
form is dated “12/30/09,” and due to the changes, no previous versions of the form will be
accepted 30 days after publication. In addition to the revised form, there are changes to filing
locations. The changes are part of an overall effort to transition the intake of benefit request forms
from USCIS Service Centers to Lockbox facilities. Centralizing form and fee intake allows USCIS
to provide more efficient and effective initial processing of applications and fees.
Beginning February 25, 2010, applicants must file a Form I-360 with either the Vermont Service
Center, the Nebraska Service Center, or at a USCIS Lockbox facility. Where applicable, USCIS
Service Centers will forward Form I-360 petitions to the appropriate Lockbox facility until March 29,
2010. After the transitional period, the Service Centers may return incorrectly filed Form I-360 with
instructions to send the petition to the correct location. USCIS will accept previous versions of
Form I-360 until March 29, 2010. After March 29, 2010, USCIS will reject previous versions of the
form submitted.
When filing Form I-360 at a Lockbox facility, you may elect to receive an email and/or text message
notifying you that USCIS has accepted your petition. To receive notification, you must complete an
E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of
your petition.
USSC Publishes Amendments to Sentencing Guidelines relating to aliens
Tuesday, February 23rd, 2010
The following are notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments; as they relate to non-citizens in federal court.
The Commission requests comment on when, if at all, the collateral consequences of a defendant’s status as a non-citizen may warrant a downward departure. There are differences among the circuits on this issue. Compare, e.g., United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993) (holding that none of the following collateral consequences are a basis for departure: (1) The fact that an alien is not eligible to be imprisoned in a lower-security facility or to participate in certain prison programs; (2) the fact that an alien will face deportation upon release from prison; and (3) the fact that an alien, upon release from prison, will be civilly detained until deportation), with United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (“[A] downward departure may be appropriate where the defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”).
The circuits appear to be in agreement, however, that the defendant’s status as a non-citizen is never a proper basis for departure when the defendant is sentenced under the illegal reentry guideline, Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States). See, e.g., United States v. Martinez-Carillo, 250 F.3d 1101, 1107 (7th Cir. 2001); United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted on the basis of such collateral consequences? If so, how?
5. The Commission requests comment on when, if at all, a downward departure may be appropriate in an illegal reentry case sentenced under Sec. 2L1.2 on the basis of “cultural assimilation”, that is, the defendant’s cultural ties to the United States. Several circuits have held that such a departure may be warranted. See, e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998); United States v. Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). Other circuits, such as the First and Tenth Circuits, have declined to rule on whether such a departure may be warranted. See, e.g., United States v. Melendez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); United States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted in an illegal reentry case on the basis of “cultural assimilation”? If so, how?
Víctimas de tráfico humano: estatus T de no inmigrante
Tuesday, February 2nd, 2010El tráfico humano, llamado también tráfico de personas, es una forma de esclavitud moderna en la que los traficantes atraen a las personas con falsas promesas de empleo y de una vida mejor. Frecuentemente, los traficantes se aprovechan de personas pobres y desempleadas a las que les falta acceso a servicios sociales. El estatus T de no inmigrante (visado T) protege a las víctimas de tráfico humano y permite que las víctimas se queden en los Estados Unidos para ayudar en una investigación o en el procesamiento penal del tráfico humano.
Elegibilidad de no inmigrante T
Puede que sea elegible para un visado T si:
- Es o ha sido víctima del tráfico humano según lo define la ley
- Está en los Estados Unidos, Samoa Americana, la Comunidad de las Islas Marianas del Norte, o en un puerto de entrada debido al tráfico humano
- Cumple con las peticiones razonables de ayuda en la investigación o procesamiento penal del tráfico humano de una agencia policial (o tiene menos de 18 años o no puede cooperar debido a algún trauma físico o psicológico)
- Demuestra que sufriría penuria extrema relacionada con daños personales extraordinarios y serios si se le hiciera salir de los Estados Unidos
- Es elegible para que se le admita en los Estados Unidos. Si no es elegible para que se le admita, puede solicitar dispensa con un Formulario I-192, Solicitud de permiso adelantado para ingresar como no inmigrante
Para solicitar el estatus T de no inmigrante
Para solicitar un visado T, presente:
- Formulario I-914, Solicitud de estatus T de no inmigrante
- Tres fotografías de tamaño de pasaporte
- Una declaración personal explicando cómo ha sido víctima del tráfico humano (en el Formulario I-914)
- Evidencia que demuestre que satisface los requisitos de elegibilidad
Nota: Se le aconseja que presente el Formulario I-914, Suplemento B, Declaración de oficial policial para víctima de tráfico de personas, para demostrar el apoyo de una agencia policial. El Formulario I-914, Suplemento B sirve como la evidencia principal de que usted es una víctima de tráfico humano y de que ha cumplido con las peticiones razonables de una entidad policial.
Vea los enlaces para los formularios de visado T que aparecen a la derecha de la página.
Para peticionar a los miembros de la familia que sean elegibles
Ciertos miembros de familia son elegibles para una visa T derivada.
| Si usted tiene… | Entonces… |
| Menos de 21 años | Puede presentar una solicitud a beneficio de su cónyuge, sus hijos, sus padres, y sus hermanos solteros menores de 18 años. |
| 21 años de edad o más | Puede peticionar a su cónyuge y sus hijos. |
Para peticionar a un miembro elegible de su familia, debe tramitar un Formulario I-914, Suplemento A, Solicitud para miembro de la familia inmediata de beneficiario de T-1, al mismo tiempo que presenta su solicitud o más adelante. Vea los enlaces del visado T que aparecen a la derecha de la página. Para solicitar residencia permanente (una Tarjeta verde [Green card]) para usted mismo o para un miembro de su familia que sea elegible, vea el enlace de “Tarjeta verde para un no inmigrante T” que aparece a la derecha de la página.
Human Trafficking
Tuesday, February 2nd, 2010. If you suspect an act of human trafficking in your area, you can report a tip to the National Human Trafficking Resource Center Hotline at 1-888-373-7888. This national, toll free hotline is available to answer calls from anywhere in the country, 24 hours a day, 7 days a week, every day of the year.
President Barack Obama proclaimed January 2010 as National Slavery and Human Trafficking Prevention Month. I was very glad to hear this. I have worked in many countries where human life is valued much more cheaply than it is here in the United States. Below are two examples that the Department of Justice has successfully prosecuted:
One case involved the trafficking of two young girls, including a 13 year-old, from rural Mexico to Tennessee with the intent of forcing them into prostitution. In December a woman from Tennessee was sentenced to 190 months in prison on sex trafficking and conspiracy charges. Her co-defendant was sentenced to 50 years in prison in 2008. Both pleaded guilty and admitted to fraudulently luring the two young girls. The multi-agency investigation and federal prosecution resulted in the successful conviction of 11 defendants.
In another case two defendants plead guilty in a forced labor case in Hawaii. Farm co-owners pleaded guilty to conspiring to commit forced labor. The men admitted to conspiring with one another and others to hold 44 Thai agricultural workers in service at their farm through a scheme of debts, threats of harm and restraint. They each face up to five years in prison for their roles in the labor trafficking scheme.
Please know that if someone is a victim of human trafficking there are visas. Below please find some questions and answers from USCIS’s website regarding the “T” & “U” visas:
T Nonimmigrant Status (T Visa) is set aside for those who are or have been victims of human trafficking and are willing to assist law enforcement in the investigation or prosecution of acts of trafficking. Below are Questions and Answers pertaining to T nonimmigrant status.
Background
In October 2000, Congress created the “T” nonimmigrant status by passing the Victims of Trafficking and Violence Protection Act (VTVPA). The legislation strengthens the ability of law enforcement agencies to investigate and prosecute human trafficking, and also offer protection to victims.
Questions and Answers
Q. What Is Human Trafficking?
A. Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers lure individuals with false promises of employment and a better life. Traffickers often take advantage of poor, unemployed individuals who lack access to social safety nets. The T nonimmigrant visa allows victims to remain in the United States to assist federal authorities in the investigation and prosecution of human trafficking cases.
To consider a situation ‘trafficking’ depends on the type of work, and the use of force, fraud, or coercion to obtain or maintain work.
Under Federal law, the term “severe forms of trafficking” can be broken into two categories:
• Sex trafficking: recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age.
• Labor trafficking: recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.
Q. Do Federal Laws Prohibit Trafficking In Persons?
A. Yes. The Thirteenth Amendment to the U.S. Constitution outlaws slavery and involuntary servitude (holding another in service through force or threats of force.) The Victims of Trafficking and Violence Protection Act (VTVPA) supplements existing laws that apply to human trafficking, including those passed to enforce the Thirteenth Amendment. The VTVPA also establishes new tools and resources to combat trafficking in persons, and provides an array of services and protections for victims of severe forms of trafficking.
Q. Is There Any Immigration Relief Available For a Victim of a Severe Form of Trafficking In Persons?
A. Yes. Victims of severe forms of human trafficking are eligible for a T Nonimmigrant status (T visa). The T nonimmigrant visa allows victims to remain in the United States to assist in the investigation or prosecution of human traffickers. Once a T nonimmigrant visa is granted, a victim can apply for permanent residence after three years.
Q. How Do You Become Eligible For T Nonimmigrant Status?
A. To qualify for T nonimmigrant status you must:
• Be or have been a victim of severe trafficking in persons.
• Be physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking.
• Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking.
• Demonstrate that you would suffer extreme hardship involving severe and unusual harm if you were removed from the United States.
If under the age of 18 at the time of the victimization, or if you are unable to cooperate with a law enforcement request due to physical or psychological trauma, you may qualify for the T nonimmigrant visa without having to assist in investigation or prosecution.
You must also be admissible to the United States or obtain a waiver of admissibility.
Q. What is the Application Process to Obtain a T Nonimmigrant Visa?
A. If you are a victim of a severe form of trafficking, you must submit a Form I-914, Application for T Nonimmigrant Status. The Form I-914 requests information regarding your eligibility for T nonimmigrant status, as well as admissibility to the United States. You must also include a statement in your own words about your victimization. You may submit a law enforcement agency endorsement using Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. You also have the option to submit secondary evidence of compliance with reasonable requests for assistance. This evidence may include: trial transcripts, court documents; police reports, news articles and affidavits.
Q. Are There Fees That I Must Pay To Apply?
A. There is no fee to file a Form I-914, Application for T Nonimmigrant Status. You may submit a request for a waiver of the filing fees for all other forms associated with filing your Form I-914.
Q. Can My Family Members Also Obtain T Nonimmigrant Status?
A. Yes. Immediate family members are eligible for derivative nonimmigrant status.
If the principle applicant is…. Then…
Under 21 years of age They may apply on behalf of spouse, children, parents and unmarried siblings under age 18.
21 years of age or older They may apply on behalf of spouse and children.
To apply for family members, you must submit a Form I-914 Supplement A, Application for Immediate Family Member of T-1 Recipient. Your family member’s application can be filed at the same time as you or at a later time.
Q. Are There a Limited Number of T Nonimmigrant Visas Given Each Year?
A. Yes. Congress has limited the number of T nonimmigrant visas granted each year to 5,000. This does not apply for family derivative visas. Once the cap is reached, applicants will be placed on a waiting list. This waiting list allows those applicants who cannot be granted a visa due to the numerical limitation to obtain priority in the following year.
Q. Can I Legally Work in the United States If I Have T Nonimmigrant Status?
A. Yes. When USCIS grants T nonimmigrant status, an Employment Authorization Document (EAD) is granted at the same time. The information for the EAD is generated from the Form I-914. There is no need to file a Form I-765, Application for Employment Authorization, along with the application for a T nonimmigrant status.
Q. How Long Am I Allowed to Remain in the United States With My T Nonimmigrant Visa?
A. The T nonimmigrant visa is valid for 3 years and a visa holder may be eligible to apply for permanent residence (Green Card) after 3 years in T nonimmigrant status.
Q. How Can I Apply For Permanent Residence (Green Card)?
A. You may apply for permanent residence by submitting Form I-485, Application to Register Permanent Residence or Adjust Status. You must have been lawfully admitted to the United States as a T nonimmigrant and must continue to hold such status at the time of application.
To qualify for permanent residence, you must:
• Be physically present in the United States for a continuous period of at least three years in T nonimmigrant status, or a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has certified that the investigation or prosecution is complete, whichever time is less.
• Maintain good moral character during your stay in the United States.
• Have complied with any reasonable request for assistance in investigation or prosecution or demonstrate extreme hardship involving unusual and severe harm upon removal from the United States.
• Be admissible to the United States, or obtain a waiver of admissibility.
For more information on green cards, see the “Green Card for a T Nonimmigrant” link to the right.
Q. Is A Victim of Trafficking Eligible For Any Services And Benefits?
A. Victims of trafficking may be eligible for a number of federally funded benefits and services regardless of immigration status if they have been certified by the U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR). Once a victim has been certified, they are eligible for the same services as a refugee. If the victim is under the age of 18, he or she is eligible for certain benefits without the requirement of certification.
For more information about the certification process, please see the “Health and Human Services” link to the right.
Q. Are There Any Other Forms of Immigration Relief Available to Victims of Trafficking?
A. Yes. Another status granted to victims of human trafficking is U nonimmigrant status (U visa). To apply for a U visa, victims must file a Form I-918, Petition for U Nonimmigrant Status. U visas are awarded to people who have suffered substantial physical or mental abuse as a result of having been a victim of specified criminal activity.
. If you suspect an act of human trafficking in your area, you can report a tip to the National Human Trafficking Resource Center Hotline at 1-888-373-7888. This national, toll free hotline is available to answer calls from anywhere in the country, 24 hours a day, 7 days a week, every day of the year.
State of Immigration Reform
Thursday, January 28th, 2010Last night President Obama included as part of his State of the Union address:
“And we should continue the work of fixing our broken immigration system – to secure our borders , enforce our laws so that everyone who plays by the rules can contribute to our economy and enrich our nation.”
As reported in the Washington Post in August of 2009 President Obama expected draft legislation for immigration reform in 2009, but that immigration reform would fall behind more pressing issues, including health-care reform, energy legislation and financial regulatory changes.
I was in a conference call regarding immigration reform yesterday for about an hour. The reoccurring message was that our representatives needed to know that they had our support for immigration reform. The received a large amount of phone calls and emails from those who oppose immigration reform. They need to receive an amount of emails or calls as large or larger to vote in favor of immigration reform.
To make the process of contacting your representatives as easy as possible I have included a link below. This link will help you find your representative, has a editable email message, you would need to fill in your name. There is no cost to use this. The cost to not contact your representatives is to not have a working immigration system for another year. email your congressman
DHS Notice on Haitian TPS
Thursday, January 21st, 2010DHS Notice on Haitian TPS
[Federal Register: January 21, 2010 (Volume 75, Number 13)]
[Notices]
[Page 3476-3479]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ja10-70]
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[Notices]
[Page 3476-3479]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ja10-70]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2491-10; DHS Docket No. USCIS]
RIN 1615-ZA96
Designation of Haiti for Temporary Protected Status
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice.
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SUMMARY: The Department of Homeland Security announces that the Secretary of Homeland Security (Secretary) has designated Haiti for temporary protected status (TPS) for a period of 18 months. Under section 244(b)(1) of the Immigration and Nationality Act, the Secretary is authorized to designate a foreign state for TPS or parts of such state upon finding that such state is experiencing ongoing armed conflict, an environmental disaster, or “extraordinary and temporary conditions.” The Secretary may grant TPS to individual nationals of the designated foreign state (or to eligible aliens having no nationality who last habitually resided in such state) who have been both continuously physically present in the United States since the effective date of the designation and continually residing in the United States since a date determined by the Secretary, and who meet other eligibility criteria. TPS is available only to persons who were continuously physically present in the United States as of the effective date of the designation.
Under this designation, Haitian nationals (and aliens having no nationality who last habitually resided in Haiti) who have continuously resided in the United States since January 12, 2010, and who remain in continual physical presence in the United States from the effective date of the notice, may apply for TPS within the 180-day registration period that begins on the date of publication of the notice. These nationals also may apply for employment authorization documents and for permission to depart from and return to the United States.
This notice also sets forth procedures necessary for nationals of Haiti (or aliens having no nationality who last habitually resided in Haiti) to register and to apply for TPS and employment authorization documents with U.S. Citizenship and Immigration Services.
DATES: This designation of Haiti for TPS is effective on January 21, 2010, and will remain in effect through July 22, 2011. The 180-day registration period for eligible individuals to submit their TPS applications begins January 21, 2010, and will remain in effect until July 20, 2010.
FOR FURTHER INFORMATION CONTACT:
For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS Web site at http://www.uscis.gov. Select “Temporary Protected Status” from the homepage under “Humanitarian.” You can find detailed information about this Haitian designation on our Web site at the Haitian Questions & Answers Section.
Applicants seeking information about the status of their individual cases can check Case Status Online available at the USCIS Web site (http://www.uscis.gov), or call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).
Further information will also be available at local USCIS offices upon publication of this Notice.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
ASC–USCIS Application Support Center
DHS–Department of Homeland Security
DOS–Department of State
EAD–Employment Authorization Document
Government–United States Government
INA–Immigration and Nationality Act
OSC–U.S. Department of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices
Secretary–Secretary of Homeland Security
TPS–Temporary Protected Status
USCIS–U.S. Citizenship and Immigration Services
What Is Temporary Protected Status?
TPS is a temporary immigration status granted to eligible nationals of a country (or to persons without nationality who last habitually resided in the designated country) that the Secretary has designated for TPS because the country is experiencing an ongoing armed conflict, an environmental disaster, or extraordinary and temporary conditions. During the period for which the Secretary has designated a country for TPS, TPS beneficiaries are eligible to remain in the United States and may
[[Page 3477]]
obtain work authorization, so long as they continue to meet the terms and conditions of their TPS status. The granting of TPS is available only to persons who were continuously physically present in the United States as of the effective date of this designation and does not lead to permanent resident status.
When the Secretary terminates a country’s TPS designation, beneficiaries return to the same immigration status they maintained before TPS (unless that status has since expired or been terminated) or to any other status they may have obtained while registered for TPS.
What Authority Does the Secretary of Homeland Security Have To Designate Haiti for TPS?
The Immigration and Nationality Act (INA), authorizes the Secretary, after consultation with appropriate agencies of the government, to designate a foreign State (or part thereof) for TPS.\1\ One of the bases for TPS designation is “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless [she] finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.” INA section 244(b)(1)(C) (emphasis added); 8 U.S.C. 1254a(b)(1)(C). The Secretary has determined, after consulting with the Department of State (DOS) and other government agencies, that there exists in Haiti “extraordinary and temporary conditions,” preventing Haitian nationals from returning to Haiti in safety and that permitting eligible Haitian nationals to remain temporarily in the United States would not be contrary to the national interest.
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\1\ As of March 1, 2003, in accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Public Law No. 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Immigration and Nationality Act describing functions transferred under the HSA from the Department of Justice to the Department of Homeland Security “shall be deemed to refer to the Secretary” of Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, tit. XV, sec. 1517).
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Following the designation of a country for TPS, the Secretary may grant TPS to eligible nationals of that foreign State (or aliens having no nationality who last habitually resided in that State) who have been both continually physically present in the United States since the effective date of the notice and continually residing in the United States since a date determined by the Secretary, and who meet all other eligibility criteria. INA section 244(a)(1)(A) and (c); 8 U.S.C. 1254a(a)(1)(A) and (c). Persons convicted of any felony, or two or more misdemeanors, committed in the United States are ineligible for TPS. Applicants may also be ineligible if one of the bars to asylum eligibility applies. Id. at section 244(c)(2)(B)(i-ii).
Why Is the Secretary Designating Haiti for TPS?
On January 12, 2010, Haiti was struck by a 7.0-magnitude earthquake. DHS and DOS have conducted an initial review of the conditions in Haiti following the earthquake. Based on this review, the Secretary has determined to designate Haiti for TPS for 18-months pursuant to section 244(b)(1)(C) of the INA for reasons discussed below. The Department of State concurs in the designation of Haiti for a period of 18 months.
The epicenter of the earthquake was off the coast of Haiti, and only 17 km from the capital, Port-au-Prince, an area where some three million of the nation’s nine million residents reside. Aftershocks have been measured at 5.9 and 5.5 respectively, and more aftershocks are expected.
Reports indicate that the earthquake destroyed most of the capital city. Initial estimates indicate that the death toll is substantial. The International Red Cross indicates that about three million people– one-third of Haiti’s population–have been affected by the earthquake.
Reports also indicate that concrete homes have collapsed and hospitals are overflowing with victims. The Presidential Palace, the Ministry of Justice, Parliament, the tax office and other government buildings, as well as the United Nations headquarters, and the World Bank offices are among the buildings reported to be destroyed or damaged. Hospitals and schools have been destroyed. The Ministry of Public Works and the Ministry of Communication and Culture have also been damaged.
The country’s critical infrastructure, including its capacity for the provision of electricity, water, and telephone services, has been severely affected. Food and water are increasingly scarce. Fuel shortages are emerging as an immediate concern.
There is limited access to the capital city. Roads are blocked by debris and other obstacles, and the collapse of the Croix de Mission Bridge has cut off a major artery between Port-au-Prince and the northern part of the country, making it more difficult to transport food, fresh water, and medical supplies. Haiti’s main airport in Port- au-Prince, Toussaint L’Ouverture International Airport, also has suffered significant damage that is hindering access to the country.
Haiti has limited resources to cope with a natural disaster, and now has been struck by its strongest earthquake in 200 years. Although a number of organizations and countries have pledged humanitarian aid, the magnitude of the disaster is substantial.
Given the size of the destruction and humanitarian challenges, there clearly exist extraordinary and temporary conditions preventing Haitian nationals from returning to Haiti in safety. Moreover, allowing eligible Haitian nationals to remain temporarily in the United States, as an important complement to the U.S. government’s wider disaster relief and humanitarian aide response underway on the ground in Haiti, would not be contrary to the public interest.
DHS estimates that there are 100,000 to 200,000 nationals of Haiti (or otherwise eligible aliens having no nationality who last habitually resided in Haiti) who are eligible for TPS under this designation.
Designation of Haiti for TPS
Based upon these unique, specific, and extreme factors, the Secretary has determined, after consultation with the appropriate Government agencies, that there exist extraordinary and temporary conditions in Haiti preventing aliens who are nationals of Haiti from returning to Haiti in safety. The Secretary further finds that it is not contrary to the national interest of the United States to permit Haitian nationals (or aliens having no nationality who last habitually resided in Haiti) who meet the eligibility requirements of TPS to remain in the United States temporarily. See INA section 244(b)(1)(C); 8 U.S.C. 1254a(b)(1)(C). On the basis of these findings and determinations, the Secretary concludes that Haiti should be designated for TPS for an 18-month period. See INA section 244(b)(2)(B); 8 U.S.C. 1254a(b)(2)(B).
Nationals of Haiti (and aliens having no nationality who last habitually resided in Haiti) who have been “continuously physically present” in the United States since January 21, 2010 and have “continuously resided” in the United States since January 12, 2010, may apply for TPS within the registration period that begins on January 21, 2010 and ends on July 20, 2010. Except as specifically provided in this notice, applications for TPS by nationals of Haiti (and aliens having no nationality who last habitually resided in Haiti) must be filed pursuant to the
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provisions of 8 CFR part 244. Aliens who wish to apply for TPS must file an Application for Temporary Protected Status, Form I-821, together with an Application for Employment Authorization, Form I-765, in accordance with the form’s instructions and applicable regulations during the registration period.
Janet Napolitano,
Secretary.
Required Application Forms and Application Fees To Register for TPS
To register for TPS, an applicant must submit two applications:
1. Form I-821, Application for Temporary Protected Status, and pay the Form I-821 application fee, which is $50. If you are unable to pay the fee, you may submit a fee waiver request with appropriate documentation.
2. Form I-765, Application for Employment Authorization.
If you want an employment authorization document (EAD), you must pay the Form I-765 application fee, which is $340, or submit a fee waiver request.
However, if you are filing an initial TPS registration and you are under the age of 14 or above the age of 65, you do not pay the Form I-765 fee to obtain an EAD.
If you are not requesting an EAD, you do not pay the Form I-765 fee.
3. Individuals who may apply for TPS pursuant to this notice and who are in removal proceedings will be provided an opportunity to apply in accordance with 8 CFR 244.7(d).
You must submit both applications together. For more information on the application forms and application fees for TPS, please visit the USCIS Web site at http://www.uscis.gov.
Biometric Services Fee
Biometrics (such as fingerprints) are required for all applicants 14 years of age or older. Those applicants must submit a biometric services fee of $80. If you are unable to pay the fee, you may submit a fee waiver request with appropriate documentation. For more information on the biometric services fee, please visit the USCIS Web site at http://www.uscis.gov.
Mailing Information
Mail your application for TPS to the proper address in Table 3:
Table 3–Mailing Addresses
(SEE PDF VERSION FOR TABLE)
E-Filing
You cannot E-file your application when applying for initial registration for TPS. Please mail your application to the mailing address listed in Table 3 above.
Supporting Documents
What type of basic supporting documentation must I submit?
To meet the basic eligibility requirements for TPS, you must submit evidence that you:
Are a national of Haiti or an alien of no nationality who last habitually resided in Haiti (such as a copy of your passport, birth certificate with English translation, etc.);
Continually resided in the United States since January 12, 2010 (see 8 CFR 244.9(a)(2));
Have been continually physically present in the United States since January 21, 2010; and
Two color passport-style photographs of yourself.
The filing instructions on Form I-821, Application for Temporary Protected Status, list all the documents needed to establish basic eligibility for TPS.
Do I need to submit additional supporting documentation?
If one or more of the questions listed in Part 4, Question 2 of the Form I-821 applies to you, then you must submit an explanation on a separate sheet(s) of paper, and/or additional documentation. Depending on the nature of the question(s) you are addressing, additional documentation alone may suffice, but usually a written explanation will also be needed.
Employment Authorization Document (EAD)
May I request an interim EAD at my local USCIS office?
No. USCIS will not issue interim EADs to TPS applicants at USCIS local offices.
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?
TPS beneficiaries under the designation of Haiti who have timely registered with USCIS as directed under this Notice and obtained an EAD, may present their valid EAD to their employers as proof of employment authorization and identity. Employers may not accept EADs that are no longer valid.
Individuals may also present any other legally acceptable document or combination of documents listed on the Form I-9 as proof of identity and employment eligibility.
Note to Employers
Employers are reminded that the laws requiring employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth re- verification requirements. For questions, employers may call the USCIS Customer Assistance Office at 1-800-357-2099. Employers may also 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.
Note to Employees
Employees or applicants may call the OSC Employee Hotline at 1-800- 255-7688 for information. Additional information is available on the OSC
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Web site at http://www.justice.gov/crt/osc/index.php.
[FR Doc. 2010-1169 Filed 1-20-10; 8:45 am]
BILLING CODE 9111-97-P
