Below is a manual developed by the San Francisco-based Immigrant Legal Resources Center (ILRC). It is an INTERIM short manual to assist Haitians in the US seeking Temporary Protected Status (TPS)
CHAPTER 1
TEMPORARY PROTECTED STATUS (TPS)*
1.1 Introduction and General TPS Provisions
Congress, via the Immigration Act of 1990, created temporary protected status (TPS) so that persons from countries that are suffering the effects of civil strife or natural disaster can be allowed to remain legally, though temporarily, in the U.S. Chapter 1 of this manual describes the statutory and regulatory provisions. Chapter 2 provides information with URL links about the current TPS designation for Haiti.
{Note to this 2010 interim updated manual. This short manual was originally published in May 1999. This interim updated version has been written very quickly in February 2010 because practitioners need a guide NOW to assist Haitians who will be applying under the designation of TPS by the Attorney General on January 15, 2010. For this interim update we reviewed the current TPS statutory provisions, and confirmed that these statutory provisions in INA sec. 244 have not changed since our publication of the original manual in 1999. We have not checked the implementing regulations at 8 CFR 244 et seq to check to see if those regulations have changed since 1999. This interim 2010 updated short manual also does not include any updated case law or DHS memorandums since 1999. We did not more thoroughly update or review the original manual so that we could get it to practitioners as soon as possible. We intend to publish a more complete and thoroughly edited 2010 updated manual as soon as possible.}
Under the following specified circumstances, the attorney general may designate a country (or any part of a country) as one whose nationals or habitual residents may be granted TPS:
1. Where the attorney general finds that ongoing armed conflict within the country would pose a serious threat to the personal safety of persons from that country who were forced to return; or
2. Where the attorney general finds that an earthquake, flood, drought, epidemic, or other environmental disaster has caused a substantial but temporary disruption of living conditions in the country; the country would not be able to adequately handle the return of its nationals (and former residents); and it has officially asked to be designated as a country whose nationals are to be granted TPS; or
3. Where the attorney general finds that extraordinary and temporary conditions in the country prevent the safe return of persons to that country, unless permitting those persons to remain temporarily in the U.S. is contrary to the U.S.’s national interest.
The attorney general must publish TPS designations in the Federal Register, and the notice must specify the date on which the TPS program for the particular country takes effect. The initial period of designation may be for no less than 6 months and no more than 18 months. The attorney general must review the designation at least 60 days prior to its termination. At the conclusion of the initial period, the designation may be terminated or extended by notice published in the Federal Register. Typically, only persons who registered for TPS during the initial period are eligible for an extension.
It is completely within the attorney general’s discretion whether to designate a foreign state as one whose nationals, or persons who last habitually resided there, qualify for TPS, and whether to extend the designation; the statute provides that the courts may not review such decisions. The only non-discretionary grant of TPS was where Congress mandated a TPS program for persons from El Salvador to last from January 1, 1991, through June 30, 1992.
Eligible aliens who are in a valid nonimmigrant or other immigration status at the time of TPS designation do not forfeit or relinquish that status. Moreover, the statute provides that, for purposes of adjustment of status, persons granted TPS are considered as being in and maintaining lawful status as nonimmigrants. The legacy INS and now the Department of Homeland Security (DHS) have taken the position that this provision does not annul the adjustment requirement of INA section 245(a), 8 U.S.C. section 1255(a), which requires that adjustment applicants have been inspected and admitted or paroled into the U.S. Under this interpretation, TPS aliens who initially entered the U.S. without inspection would not be able to adjust status unless they subsequently left the U.S. and on return were either admitted or paroled. {The INS also took the position that TPS aliens who initially entered without inspection but then traveled abroad and returned pursuant to advance parole after being granted TPS may be barred from adjustment under INA section 245(c), 8 U.S.C. section 1255(c), which bars the adjustment of aliens, other than special immigrants or the immediate relatives of citizens, who failed to maintain lawful status since the date they entered the U.S. We have not reviewed the current DHS position on this issue.
Although the INS initially took the position that TPS aliens returning to the U.S. with advance parole would be paroled in and then placed in exclusion proceedings after their TPS expired, Congress subsequently provided that non-excludable TPS aliens returning to the U.S. must be inspected and admitted rather than paroled into the U.S. Though TPS aliens enjoy these immigration- and employment-related benefits, the statute specifically provides that TPS aliens “shall not be considered to be permanently residing in the U.S. under color of law,” so they are ineligible for many forms of public benefits.
The statute requires the DHS to provide prompt notice of TPS designation to all aliens in removal proceedings who are eligible for the status. Implementation of a TPS program is the responsibility of Citizenship and Immigration Services (CIS) which is part of the Department of Homeland Security (DHS). All subsequent references to implementation of TPS are to DHS.
1.2 Eligibility and Application Procedures
To be eligible for TPS, aliens who are nationals or habitual residents of a designated country must meet the following requirements:
1. They must have been physically present in the U.S. continuously since the effective date of the most recent TPS designation of that state
2. They must have resided continuously in the U.S. since such date as the attorney general may designate (i.e., the attorney general may establish a date earlier than the date of TPS designation by which aliens must have been in the U.S. to be eligible for TPS)
3. They must be admissible as immigrants
4. They must not have committed one felony or two or more misdemeanors
The statute provides that brief, casual, and innocent absences, whether or not author¬ized by the attorney general, will not be considered to interrupt the required continuous physi¬cal presence. Also, such absences, as well as brief absences “required by emergency or extenuating circumstances outside the control of the alien,” are not considered to interrupt the required continuous residence.
Applicable Grounds of Inadmissibility: Although TPS applicants are required to be admissible as immigrants, some grounds of inadmissibility do not apply to them, such as: the grounds of Public Charge, Labor Certification, Unqualified Physicians and Documentation requirements. Additionally, many of the inadmissibility grounds that do apply can be waived. TPS applicants may request such waivers on Form I 601. One should bear in mind that there are still various inadmissibility grounds that cannot be waived.
Bars Not Listed in the Statute: A person who is subject to reinstatement of removal pursuant to INA § 241(a)(5) is probably barred from TPS. However, as of 1999 it had not been established by federal courts whether this may be applied retroactively either to people who were deported or returned to the U.S. prior to the effective date of this provision. The bars to discretionary relief found in INA §§ 240(b)(7), 240B(d), and 240A(c) or in the parallel provisions in the INA prior to IIRIRA should not apply because TPS is not a discretionary remedy.
Application Procedures: To obtain TPS, eligible aliens must register with the INS. To register, they must sub¬mit the following forms:
1. Form I 765 (Application for Employment Authorization Document)
2. Form I 821 (TPS form)
3. Two identification photographs {WE NEED TO confirmed in this update that the specifications are still -1/2" x 1-1/2" OR DELETE THIS INFORMATION XX}
4. Supporting evidence of identity, nationality, and proof of residence
The DHS will schedule the person to be fingerprinted.
The statute limits the filing fee to $50 for TPS registration. There may be a separate fee for documentation of employment authorization.. In addition, the applicant should submit a separate check or money order for fingerprinting. A fee waiver is available for applicants who can establish that their expenses exceed their income.
1.3 Annual Registration Requirement
XX {EDITING – CHECK IN PARTICULAR TO SEE IF STILL ACCURATE PER REGS} According to 8 CFR §244.17, persons granted TPS are required to register annually with the INS. This registration requirement applies to nationals of foreign states that have been designated or re-designated for more than one year as a TPS beneficiary under INA §244(b). Registration is accomplished by mailing or submitting in person Forms I-821 and I-765 within the 30 day period prior to the anniversary of the grant of TPS. Generally, registration by mail completes the registration requirement, however, the DHS may request a beneficiary to appear in person. If this happens, the failure to appear without good cause is considered a failure to register. The failure to register annually as required by 8 CFR §244.17 results in the withdrawal of the beneficiary’s Temporary Protected Status.
1.4 Risks and Benefits of Applying for TPS
The benefits of obtaining TPS listed in the statute INA §244 include:
a) Protection against deportation and detention §244(d)(4);
b) Employment authorization §244(a)(1)(b);
c) The ability to travel abroad with the permission of the DHS (advance parole) §244(c)(4)(B).
In addition, the time that a person is a beneficiary of TPS should not count as unlawful presence for purposes of the three and ten year bars. INA §212(a)(9)(B).
{The risk of applying is that once the period of TPS has expired the DHS might place the person in removal proceedings. At the time of the writing of this update in 2010, we do not know what the likelihood of this risk is. It should be noted that TPS recipients are required to register their address annually with the DHS in most circumstances as discussed in § 1.3. An important practical question is what the DHS does after the TPS period has ended. Is it likely that the Service will send a NTA (Notice To Appear) to the person? If the person has moved after the termination of TPS, but before the Service issues a NTA, may the Service base in absentia hearings on that notice given that the person had no ongoing obligation to continue to apprise the Service of his or her address?}
1.5 Persons With Prior Deportation/Removal Orders and Related Issues
Bars for in absentia removal or deportation orders and overstaying voluntary departure to not apply to TPS:
The bars to discretionary relief found in INA 240(b)(7) for an in absentia deportation or removal order do not apply to TPS. The provision lists specifically the relief (such as adjustment of status) for which a person is barred. TPS is not included. Similarly, the bars to relief for failing to depart pursuant to voluntary departure found in INA 240B(d) do not include TPS. The General Counsel indicated sometime before March 1999 that no motion to reopen is required to apply for TPS. This is consistent with the experience with Honduran and Nicaraguan TPS.
URL “APPENDICES”:
Below is the URL for the relevant statutory provisions in section 244 of the Immigration and Nationality Act (INA).
http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act
Below is the URL for the TPS implementing regulations at 8 CFR 244 et seq.
http://www.access.gpo.gov/nara/cfr/waisidx_01/8cfr244_01.html
CHAPTER 2
TEMPORARY PROTECTED STATUS (TPS)
FOR HAITIANS
The Attorney General designated Haiti for Temporary Protected Status (TPS) on January 15, 2010 due to the devastation caused by earthquake that country. Haiti was designated to these countries pursuant to INA § 244 (b)(1)(B) allowing such a designation for environmental disasters. The designation is currently scheduled to end on July 20, 2010. To be eligible, a Haitian has to have resided in the United States on or before January 12, 2010.
Immediately below is the USCIS summary of the provisions of the designation of Haiti for TPS.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9236745543256210VgnVCM100000082ca60aRCRD&vgnextchannel=9cf75869c9326210VgnVCM100000082ca60aRCRD
Immediately below is a more detailed summary on the USCIS website of the provisions of the designation of Haiti for TPS.
Immediately below is a more detailed USCIS description of Haitian TPS.
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=848f7f2ef0745210VgnVCM100000082ca60aRCRD&vgnextchannel=848f7f2ef0745210VgnVCM100000082ca60aRCRD
Immediately below is the TPS designation of Haiti in the Federal Register.
http://edocket.access.gpo.gov/2010/2010-1169.htm
Immediately below is a USCIS description of the TPS designation of Haiti in French.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9aaa4f3d66446210VgnVCM100000082ca60aRCRD&vgnextchannel=9cf75869c9326210VgnVCM100000082ca60aRCRD
Wednesday, February 24, 2010
Monday, February 15, 2010
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