8 C.F.R. PART 244—TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES
Title 8 - Aliens and Nationality
Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
As used in this part: Brief, casual, and innocent absence means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law. Charging document means the written instrument which initiates a proceeding before an Immigration Judge. For proceedings initiated prior to April 1, 1997, these documents include an Order to Show Cause, a Notice to Applicant for Admission Detained for Hearing before Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. For proceedings initiated after April 1, 1997, these documents include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. Continuously physically present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section. Continuously resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244 of the Act, the crime shall be treated as a misdemeanor. Foreign state means any foreign country or part thereof as designated by the Attorney General pursuant to section 244 of the Act. Misdemeanor means a crime committed in the United States, either: (1) Punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or (2) A crime treated as a misdemeanor under the term “felony” of this section. For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor. Prima facie means eligibility established with the filing of a completed application for Temporary Protected Status containing factual information that if unrebutted will establish a claim of eligibility under section 244 of the Act. Register means to properly file, with the director, a completed application, with proper fee, for Temporary Protected Status during the registration period designated under section 244(b) of the Act. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63595, Nov. 16, 1998; 64 FR 4781, Feb. 1, 1999] Except as provided in §§244.3 and 244.4, an alien may in the discretion of the director be granted Temporary Protected Status if the alien establishes that he or she: (a) Is a national, as defined in section 101(a)(21) of the Act, of a foreign state designated under section 244(b) of the Act; (b) Has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state; (c) Has continuously resided in the United States since such date as the Attorney General may designate; (d) Is admissible as an immigrant except as provided under §244.3; (e) Is not ineligible under §244.4; and (f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the (2) During any subsequent extension of such designation if at the time of the initial registration period: (i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal; (ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal; (iii) The applicant is a parolee or has a pending request for reparole; or (iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant. (3) Eligibility for late initial registration in a currently designated foreign state shall also continue until January 15, 1999, for any applicant who would have been eligible to apply previously if paragraph (f)(2) of this section as revised had been in effect before November 16, 1998. (g) Has filed an application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section. [63 FR 63595, Nov. 16, 1998] (a) Grounds of inadmissibility not to be applied. Paragraphs (4), (5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not render an alien ineligible for Temporary Protected Status. (b) Waiver of grounds of inadmissibility. Except as provided in paragraph (c) of this section, the Service may waive any other provision of section 212(a) of the Act in the case of individual aliens for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest. If an alien is inadmissible on grounds which may be waived as set forth in this paragraph, he or she shall be advised of the procedures for applying for a waiver of grounds of inadmissibility on Form I–601 (Application for waiver of grounds of excludability). (c) Grounds of inadmissibility that may not be waived. The Service may not waive the following provisions of section 212(a) of the Act: (1) Paragraphs (2)(A)(i), (2)(B), and (2)(C) (relating to criminals and drug offenses); (2) Paragraphs (3)(A), (3)(B), (3)(C), and (3)(D) (relating to national security); or (3) Paragraph (3)(E) (relating to those who assisted in the Nazi persecution). [56 FR 619, Jan. 7, 1991, as amended at 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] An alien is ineligible for Temporary Protected Status if the alien: (a) Has been convicted of any felony or two or more misdemeanors, as defined in §244.1, committed in the United States, or (b) Is an alien described in section 243(h)(2) of the Act. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998] (a) Prior to the registration period. Prior to the registration period established by the Attorney General, a national of a foreign state designated by the Attorney General shall be afforded temporary treatment benefits upon the filing, after the effective date of such designation, of a completed application for Temporary Protected Status which establishes the alien's prima facie eligibility for benefits under section 244 of the Act. This application may be filed without fee. Temporary treatment benefits, if granted, shall terminate unless the registration fee is paid or a waiver is sought within the first thirty days of the registration period designated by the Attorney General. If the registration fee is paid or a waiver is sought within such thirty day period, temporary treatment benefits shall continue until terminated under §244.13. The denial of temporary treatment benefits prior to the registration period designated by the Attorney General shall be without prejudice to the filing of an application for Temporary Protected Status during such registration period. (b) During the registration period. Upon the filing of an application for Temporary Protected Status, the alien shall be afforded temporary treatment benefits, if the application establishes the alien's prima facie eligibility for Temporary Protected Status. Such temporary treatment benefits shall continue until terminated under §244.13. (c) Denied benefits. There shall be no appeal from the denial of temporary treatment benefits. [56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998] An application for Temporary Protected Status must be made in accordance with §103.2 of this chapter except as provided in this section. Each application must be filed with the fee, as provided in §103.7 of this chapter by each individual seeking temporary protected status, except that the filing fee for the Form I–765 will be charged only for those applicants between the ages of 14 and 65 (inclusive) who are requesting employment authorization. Each application must include a completed Form I–821, Application for Temporary Protected Status, Form I–765, Application for Employment Authorization, two identification photographs (1 [64 FR 4781, Feb. 1, 1999] (a) An application for Temporary Protected Status shall be filed with the director having jurisdiction over the applicant's place of residence. (b) An application for Temporary Protected Status must be filed during the registration period established by the Attorney General, except in the case of an alien described in §244.2(f)(2). (c) Each applicant must pay a fee, as determined at the time of the designation of the foreign state, except as provided in §244.5(a). (d) If the alien has a pending deportation or exclusion proceeding before the immigration judge or Board of Immigration Appeals at the time a foreign state is designated under section 244(b) of the Act, the alien shall be given written notice concerning Temporary Protected Status. Such alien shall have the opportunity to submit an application for Temporary Protected Status to the director under paragraph (a) of this section during the published registration period unless the basis of the charging document, if established, would render the alien ineligible for Temporary Protected Status under §244.3(c) or §244.4. Eligibility for Temporary Protected Status in the latter instance shall be decided by the Executive Office for Immigration Review during such proceedings. [63 FR 63596, Nov. 16, 1998] The applicant may be required to appear in person before an immigration officer. The applicant may be required to present documentary evidence to establish his or her eligibility. The applicant may have a representative as defined in §292.1 of this chapter present during any examination. Such representative shall not directly participate in the examination; however, such representative may consult with and provide advice to the applicant. The record of examination shall consist of the application, documents relating to the application, and the decision of the director. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998] (a) Documentation. Applicants shall submit all documentation as required in the instructions or requested by the Service. The Service may require proof of unsuccessful efforts to obtain documents claimed to be unavailable. If any required document is unavailable, an affidavit or other credible evidence may be submitted. (1) Evidence of identity and nationality. Each application must be accompanied by evidence of the applicant's identity and nationality, if available. If these documents are unavailable, the applicant shall file an affidavit showing proof of unsuccessful efforts to obtain such identity documents, explaining why the consular process is unavailable, and affirming that he or she is a national of the designated foreign state. A personal interview before an immigration officer shall be required for each applicant who fails to provide documentary proof of identity or nationality. During this interview, the applicant may present any secondary evidence that he or she feels would be helpful in showing nationality. Acceptable evidence in descending order of preference may consist of: (i) Passport; (ii) Birth certificate accompanied by photo identification; and/or (iii) Any national identity document from the alien's country of origin bearing photo and/or fingerprint. (2) Proof of residence. Evidence to establish proof of continuous residence in the United States during the requisite period of time may consist of any of the following: (i) Employment records, which may consist of pay stubs, W-2 Forms, certification of the filing of Federal, State, or local income tax returns; letters from employer(s) or, if the applicant has been self employed, letters from banks, and other firms with whom he or she has done business. In all of the above, the name of the alien and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be in affidavit form, and shall be signed and attested to by the employer under penalty of perjury. Such letters from employers must include: (A) Alien's address(es) at the time of employment; (B) Exact period(s) of employment; (C) Period(s) of layoff; and (D) Duties with the company. (ii) Rent receipts, utility bills (gas, electric, telephone, etc.), receipts, or letters from companies showing the dates during which the applicant received service; (iii) School records (letters, report cards, etc.) from the schools that the applicant or his or her children have attended in the United States showing name of school and period(s) of school attendance; (iv) Hospital or medical records showing medical treatment or hospitalization of the applicant or his or her children, showing the name of the medical facility or physician as well as the date(s) of the treatment or hospitalization; (v) Attestations by churches, unions, or other organizations of the applicant's residence by letter which: (A) Identifies applicant by name; (B) Is signed by an official whose title is also shown; (C) Shows inclusive dates of membership; (D) States the address where applicant resided during the membership period; (E) Includes the seal of the organization impressed on the letter or is on the letterhead of the organization, if the organization has letterhead stationery; (F) Establishes how the attestor knows the applicant; and (G) Establishes the origin of the information being attested to. (vi) Additional documents to support the applicant's claim, which may include: (A) Money order receipts for money sent in or out of the country; (B) Passport entries; (C) Birth certificates of children born in the United States; (D) Bank books with dated transactions; (E) Correspondence between the applicant and other persons or organizations; (F) Social Security card; (G) Selective Service card; (H) Automobile license receipts, title, vehicle registration, etc; (I) Deeds, mortgages, contracts to which applicant has been a party; (J) Tax receipts; (K) Insurance policies, receipts, or letters; and/or (L) Any other relevant document. (3) Evidence of eligibility under section 244(c)(2) of the Act. An applicant has the burden of showing that he or she is eligible for benefits under this part. (4) Evidence of valid immigrant or nonimmigrant status. In the case of an alien described in §244.2(f)(2), Form I–551 or Form I–94 must be submitted by the applicant. (b) Sufficiency of evidence. The sufficiency of all evidence will be judged according to its relevancy, consistency, credibility, and probative value. To meet his or her burden of proof the applicant must provide supporting documentary evidence of eligibility apart from his or her own statements. (c) Failure to timely respond. Failure to timely respond to a request for information, or to appear for a scheduled interview, without good cause, will be deemed an abandonment of the application and will result in a denial of the application for lack of prosecution. Such failure shall be excused if the request for information, or the notice of the interview was not mailed to the applicant's most recent address provided to the Service. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16. 1998] (a) Temporary treatment benefits. The director shall grant temporary treatment benefits to the applicant if the applicant establishes prima facie eligibility for Temporary Protected Status in accordance with §244.5. (b) Temporary Protected Status. Upon review of the evidence presented, the director may approve or deny the application for Temporary Protected Status in the exercise of discretion, consistent with the standards for eligibility in §§244.2, 244.3, and 244.4. (c) Denial by director. The decision of the director to deny Temporary Protected Status, a waiver of grounds of inadmissibility, or temporary treatment benefits shall be in writing served in person or by mail to the alien's most recent address provided to the Service and shall state the reason(s) for the denial. Except as otherwise provided in this section, the alien shall be given written notice of his or her right to appeal a decision denying Temporary Protected Status. To exercise such right, the alien shall file a notice of appeal, Form I–290B, with the director who issued the denial. If an appeal is filed, the administrative record shall be forwarded to the AAU for review and decision, pursuant to authority delegated in §103.1(f)(2), except as otherwise provided in this section. (1) If the basis for the denial of the Temporary Protected Status constitutes a ground for deportability or excludability which renders the alien ineligible for Temporary Protected Status under §244.4 or inadmissible under §244.3(c), the decision shall include a charging document which sets forth such ground(s). (2) If such a charging document is issued, the alien shall not have the right to appeal the director's decision denying Temporary Protected Status as provided in this subsection. The decision shall also apprise the alien of his or her right to a de novo determination of his or her eligibility for Temporary Protected Status in deportation or exclusion proceedings pursuant to §§240.11 and 244.18. (d) Decision by AAU. The decision of the AAU shall be in writing served in person, or by mail to the alien's most recent address provided to the Service, and, if the appeal is dismissed, the decision shall state the reason(s) for the denial. (1) If the appeal is dismissed by the AAU under §240.18(b), the decision shall also apprise the alien of his or her right to a de novo determination of eligibility for Temporary Protected Status in deportation or exclusion proceedings. (2) If the appeal is dismissed by the AAU, the director may issue a charging document if no charging document is presently filed with the Immigration Court. (3) If a charging document has previously been filed or is pending before the Immigration Court, either party may move to recalendar the case after the decision by the AAU. (e) Grant of temporary treatment benefits. (1) Temporary treatment benefits shall be evidenced by the issuance of an employment authorization document. The alien shall be given, in English and in the language of the designated foreign state or a language that the alien understands, a notice of the registration requirements for Temporary Protected Status and a notice of the following benefits: (i) Temporary stay of deportation; and (ii) Temporary employment authorization. (2) Unless terminated under §244.13, temporary treatment benefits shall remain in effect until a final decision has been made on the application for Temporary Protected Status. (f) Grant of temporary protected status. (1) The decision to grant Temporary Protected Status shall be evidenced by the issuance of an alien registration document. For those aliens requesting employment authorization, the employment authorization document will act as alien registration. (2) The alien shall be provided with a notice, in English and in the language of the designated foreign state or a language that the alien understands, of the following benefits: (i) The alien shall not be deported while maintaining Temporary Protected Status; (ii) Employment authorization; (iii) The privilege to travel abroad with the prior consent of the director as provided in §244.15; (iv) For the purposes of adjustment of status under section 245 of the Act and change of status under section 248 of the Act, the alien is considered as being in, and maintaining, lawful status as a nonimmigrant while the alien maintains Temporary Protected Status. (v) An alien eligible to apply for Temporary Protected Status under §244.2(f)(2), who was prevented from filing a late application for registration because the regulations failed to provide him or her with this opportunity, will be considered to have been maintaining lawful status as a nonimmigrant until the benefit is granted. (3) The benefits contained in the notice are the only benefits the alien is entitled to under Temporary Protected Status. (4) Such notice shall also advise the alien of the following: (i) The alien must remain eligible for Temporary Protected Status; (ii) The alien must register annually with the district office or service center having jurisdiction over the alien's place of residence; and (iii) The alien's failure to comply with paragraphs (f)(4) (i) or (ii) of this section will result in the withdrawal of Temporary Protected Status, including work authorization granted under this Program, and may result in the alien's deportation from the United States. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993; 60 FR 34090, June 30, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999] If a charging document is served on the alien with a notice of denial or withdrawal of Temporary Protected Status, an alien may renew the application for Temporary Protected Status in deportation or exclusion proceedings. The decision of the immigration judge as to eligibility for Temporary Protected Status may be appealed to the Board of Immigration Appeals pursuant to §3.3 of this chapter. The provisions of this section do not extend the benefits of Temporary Protected Status beyond the termination of a foreign state's designation pursuant to §244.19. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998] (a) Upon approval of an application for Temporary Protected Status, the INS shall grant an employment authorization document valid during the initial period of the foreign state's designation (and any extensions of such period). (b) If the alien's Temporary Protected Status is withdrawn under §244.14, employment authorization expires upon notice of withdrawal or on the date stated on the employment authorization document, whichever occurs later. (c) If Temporary Protected Status is denied by the INS, employment authorization shall terminate upon notice of denial or at the expiration of the employment authorization document, whichever occurs later. (d) If the application is renewed or appealed in deportation or exclusion proceedings, or appealed to the Administrative Appeals Unit pursuant to §244.18(b), employment authorization will be extended during the pendency of the renewal and/or appeal. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999] (a) Temporary treatment benefits terminate upon a final determination with respect to the alien's eligibility for Temporary Protected Status. (b) Temporary treatment benefits terminate, in any case, sixty (60) days after the date that notice is published of the termination of a foreign state's designation under section 244(b)(3) of the Act. [56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998] (a) Authority of director. The director may withdraw the status of an alien granted Temporary Protected Status under section 244 of the Act at any time upon the occurrence of any of the following: (1) The alien was not in fact eligible at the time such status was granted, or at any time thereafter becomes ineligible for such status; (2) The alien has not remained continuously physically present in the United States from the date the alien was first granted Temporary Protected Status under this part. For the purpose of this provision, an alien granted Temporary Protected Status under this part shall be deemed not to have failed to maintain continuous physical presence in the United States if the alien departs the United States after first obtaining permission from the district director to travel pursuant to §244.15; (3) The alien fails without good cause to register with the Attorney General annually within thirty (30) days before the end of each 12-month period after the granting of Temporary Protected Status. (b) Decision by director. (1) Withdrawal of an alien's status under paragraph (a) of this section shall be in writing and served by personal service pursuant to §103.5(a) of this chapter. If the ground for withdrawal is §240.14(a)(3), the notice shall provide that the alien has thirty (30) days within which to provide evidence of good cause for failure to register. If the alien fails to respond within thirty (30) days, Temporary Protected Status shall be withdrawn without further notice. (2) Withdrawal of the alien's Temporary Protected Status under paragraph (b)(1) of this section may subject the applicant to exclusion or deportation proceedings under sections 235, 236, 237, 238, 240, or 241 of the Act as appropriate. (3) If the basis for the withdrawal of Temporary Protected Status constitutes a ground of deportability or excludability which renders an alien ineligible for Temporary Protected Status under §244.4 or inadmissible under §244.3(c), the decision shall include a charging document which sets forth such ground(s) with notice of the right of a de novo determination of eligibility for Temporary Protected Status in deportation or exclusion proceedings. If the basis for withdrawal does not constitute such a ground, the alien shall be given written notice of his or her right to appeal to the AAU. Upon receipt of an appeal, the administrative record will be forwarded to the AAU for review and decision pursuant to the authority delegated under §103.1(f)(2). Temporary Protected Status benefits will be extended during the pendency of an appeal. (c) Decision by AAU. If a decision to withdraw Temporary Protected Status is entered by the AAU, the AAU shall notify the alien of the decision and the right to a de novo determination of eligibility for Temporary Protected Status in deportation or exclusion proceedings, if the alien is then deportable or excludable, as provided by §244.10(d). [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, 63597, Nov. 16, 1998] (a) After the grant of Temporary Protected Status, the alien must remain continuously physically present in the United States under the provisions of section 244(c)(3)(B) of the Act. The grant of Temporary Protected Status shall not constitute permission to travel abroad. Permission to travel may be granted by the director pursuant to the Service's advance parole provisions. There is no appeal from a denial of advance parole. (b) Failure to obtain advance parole prior to the alien's departure from the United States may result in the withdrawal of Temporary Protected Status and/or the institution or recalendering of deportation or exclusion proceedings against the alien. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999] The information contained in the application and supporting documents submitted by an alien shall not be released in any form whatsoever to a third party requester without a court order, or the written consent of the alien. For the purpose of this provision, a third party requester means any requester other than the alien, his or her authorized representative, an officer of the Department of Justice, or any federal or State law enforcement agency. Any information provided under this part may be used for purposes of enforcement of the Act or in any criminal proceeding. [56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] (a) Aliens granted Temporary Protected Status must register annually with the INS designated office having jurisdiction over their place of residence. Such registration will apply to nationals of those foreign states designated or redesignated for more than one year by the Attorney General pursuant to section 244(b) of the Act. Registration may be accomplished by mailing or submitting in person, depending on the practice in place at the INS designated office, completed Forms I–821 and I–765 within the thirty (30) day period prior to the anniversary of the grant of Temporary Protected Status (inclusive of such anniversary date). Form I–821 will be filed without fee. Form I–765 will be filed with fee only if the alien is requesting employment authorization. Completing the block on the I–821 attesting to the continued maintenance of the conditions of eligibility will generally preclude the need for supporting documents or evidence. The Service, however, reserves the right to request additional information and/or documentation on a case-by-case basis. (b) Unless the Service determines otherwise, registration by mail shall suffice to meet the alien's registration requirements. However, as part of the registration process, an alien will generally have to appear in person in order to secure a renewal of employment authorization unless the Service determines that employment authorization will be extended in another fashion due to operational need. The Service may also request that an alien appear in person as part of the registration process. In such cases, failure to appear without good cause shall be deemed a failure to register under this chapter. (c) Failure to register without good cause will result in the withdrawal of the alien's Temporary Protected Status. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63597, Nov. 16, 1998] (a) A charging document may be issued against an alien granted Temporary Protected Status on grounds of deportability or excludability which would have rendered the alien statutorily ineligible for such status pursuant to §§244.3(c) and 244.4. Aliens shall not be deported for a particular offense for which the Service has expressly granted a waiver. If the alien is deportable on a waivable ground, and no such waiver for the charged offense has been previously granted, then the alien may seek such a waiver in deportation or exclusion proceedings. The charging document shall constitute notice to the alien that his or her status in the United States is subject to withdrawal. A final order of deportation or exclusion against an alien granted Temporary Protected Status shall constitute a withdrawal of such status. (b) The filing of the charging document by the Service with the Immigration Court renders inapplicable any other administrative, adjudication or review of eligibility for Temporary Protected Status. The alien shall have the right to a de novo determination of his or her eligibility for Temporary Protected Status in the deportation or exclusion proceedings. Review by the Board of Immigration Appeals shall be the exclusive administrative appellate review procedure. If an appeal is already pending before the Administrative Appeals Unit, the director shall notify the Administrative Appeals Unit of the filing of the charging document, in which case the pending appeal shall be dismissed and the record of proceeding returned to the jurisdiction where the charging document was filed. (c) Upon denial of Temporary Protected Status by the Administrative Appeals Unit, the Administrative Appeals Unit shall immediately forward the record of proceeding to the director having jurisdiction over the alien's place of residence. The director shall, as soon as practicable, file a charging document with the Immigration Court if the alien is then deportable or excludable under section 241(a) or section 212(a) of the Act, respectively. (d) An alien who is determined by the Service to be deportable or excludable upon grounds which would have rendered the alien ineligible for such status as provided in §§240.3(c) and 240.4 may be detained under the provisions of this chapter pending deportation or exclusion proceedings. Such alien may be removed from the United States upon entry of a final order of deportation or exclusion. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 34090, June 30, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999] Upon the termination of designation of a foreign state, those nationals afforded temporary Protected Status shall, upon the sixtieth (60th) day after the date notice of termination is published in the [56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 63597, Nov. 16, 1998] (a) Any of the fees prescribed in 8 CFR 103.7(b) which relate to applications to the district director or service center director for Temporary Protected Status may be waived if the applicant establishes that he or she is unable to pay the prescribed fee. The applicant will have established his or her inability to pay when the adjudicating officer concludes, on the basis of the requisite affidavit and of any other information submitted, that it is more probable than not that: (1) The applicant's gross income from all sources for the three-month period prior to the filing of the fee waiver request, including income received or earned by any dependent in the United States, was equaled or exceeded by essential expenditures for such three-month period; and (2) The applicant does not own, possess, or control assets sufficient to pay the fee without substantial hardship. (b) For purposes of this section, essential expenditures are limited to reasonable expenditures for rent, utilities, food, transportation to and from employment, and any essential extraordinary expenditures, such as essential medical expenses, or expenses for clothing, laundry, and child care, to the extent that the applicant can show that those expenditures made during the three-month period prior to the filing of the fee waiver request were reasonable and essential to his or her physical well-being or to earning a livelihood. (c) For purposes of this section, the TPS registration fee (including the fee for employment authorization, if applicable) shall be considered an essential expenditure. A fee waiver will be granted if the sum of the fees for TPS registration and employment authorization equals or exceeds income and assets that remain after deducting other essential expenditures. (d) If an adjudicating officer is satisfied that an applicant has established inability to pay, he or she shall not deny a fee waiver due to the cost of administering the TPS program. (e) For purposes of this section, the following documentation shall be required: (1) The applicant seeking a fee waiver must submit an affidavit, under penalty of perjury, setting forth information to establish that he or she satisfies the requirements of this section. The affidavit shall individually list: (i) The applicant's monthly gross income from each source for each of the three months prior to the filing of the fee waiver request; (ii) All assets owned, possessed, or controlled by the applicant or by his or her dependents; (iii) The applicant's essential monthly expenditures, itemized for each of the three months prior to the filing of the fee waiver request, including essential extraordinary expenditures; and (iv) The applicant's dependents in the United States, his or her relationship to those dependents, the dependents' ages, any income earned or received by those dependents, and the street address of each dependent's place of residence. (2) The applicant may also submit other documentation tending to substantiate his or her inability to pay. (f) If the adjudicating officer concludes based upon the totality of their circumstances that the information presented in the affidavit and in any other additional documentation is inaccurate or insufficient, the adjudicating officer may require that the applicant submit the following additional documents prior to the adjudication of a fee waiver: (1) The applicant's employment records, pay stubs, W-2 forms, letter(s) from employer(s), and proof of filing of a local, state, or federal income tax return. The same documents may also be required from the applicant's dependents in the United States. (2) The applicant's rent receipts, bills for essential utilities (for example, gas, electricity, telephone, water), food, medical expenses, and receipts for other essential expenditures. (3) Documentation to show all assets owned, possessed, or controlled by the applicant or by dependents of the applicant. (4) Evidence of the applicant's living arrangements in the United States (living with relative, living in his or her own house or apartment, etc.), and evidence of whether his or her spouse, children, or other dependents are residing in his or her household in the United States. (5) Evidence of the applicant's essential extraordinary expenditures or those of his or her dependents residing in the United States. (g) The adjudicating officer must consider the totality of the information submitted in each case before requiring additional information or rendering a final decision. (h) All documents submitted by the applicant or required by the adjudicating officer in support of a fee waiver request are subject to verification by the Service. (i) In requiring additional information, the adjudicating officer should consider that some applicants may have little or no documentation to substantiate their claims. An adjudicating officer may accept other evidence, such as an affidavit from a member of the community of good moral character, but only if the applicant provides an affidavit stating that more direct documentary evidence in unavailable. [57 FR 34507, Aug. 5, 1992. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997]
Title 8: Aliens and Nationality
PART 244—TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES
Section Contents
§ 244.1 Definitions.
§ 244.2 Eligibility.
§ 244.3 Applicability of grounds of inadmissibility.
§ 244.4 Ineligible aliens.
§ 244.5 Temporary treatment benefits for eligible aliens.
§ 244.6 Application.
§ 244.7 Filing the application.
§ 244.8 Appearance.
§ 244.9 Evidence.
§ 244.10 Decision by the director or Administrative Appeals Unit (AAU).
§ 244.11 Renewal of application; appeal to the Board of Immigration Appeals.
§ 244.12 Employment authorization.
§ 244.13 Termination of temporary treatment benefits.
§ 244.14 Withdrawal of Temporary Protected Status.
§ 244.15 Travel abroad.
§ 244.16 Confidentiality.
§ 244.17 Annual registration.
§ 244.18 Issuance of charging documents; detention.
§ 244.19 Termination of designation.
§ 244.20 Waiver of fees.
§ 244.1 Definitions.
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§ 244.2 Eligibility.
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§ 244.3 Applicability of grounds of inadmissibility.
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§ 244.4 Ineligible aliens.
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§ 244.5 Temporary treatment benefits for eligible aliens.
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§ 244.6 Application.
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§ 244.7 Filing the application.
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§ 244.8 Appearance.
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§ 244.9 Evidence.
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§ 244.10 Decision by the director or Administrative Appeals Unit (AAU).
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§ 244.11 Renewal of application; appeal to the Board of Immigration Appeals.
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§ 244.12 Employment authorization.
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§ 244.13 Termination of temporary treatment benefits.
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§ 244.14 Withdrawal of Temporary Protected Status.
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§ 244.15 Travel abroad.
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§ 244.16 Confidentiality.
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§ 244.17 Annual registration.
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§ 244.18 Issuance of charging documents; detention.
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§ 244.19 Termination of designation.
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§ 244.20 Waiver of fees.
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