[Federal Register: September 19, 2000 (Volume 65, Number 182)]
[Rules and Regulations]
[Page 56463-56466]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se00-1]
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Rules and Regulations
Federal Register
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[[Page 56463]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 1811-96]
RIN 1115-AE61
Habitual Residence in the Territories and Possessions of the
United States
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the Immigration and Naturalization
Service (Service) regulations relating to the rights and limitations of
habitual residents in the territories and possessions of the United
States under:
The Compact of Free Association between the United States
and the Government of the Republic of the Marshall Islands and the
Government of the Federated States of Micronesia; and
The Compact of Free Association between the United States
and the Government of Palau.
This amendment defines the rights and limitations of nonimmigrant
habitual residents of the territories and possessions of the United
States, other than American Samoa and the Northern Mariana Islands, who
were admitted to those territories or possessions pursuant to the
provisions of those Compacts. The final rule establishes a policy that
protects the rights of both habitual residents electing to reside in
United States territories and possessions and the citizens of the
territories and possessions.
DATES: This final rule is effective September 19, 2000.
FOR FURTHER INFORMATION CONTACT: Craig Howie, Headquarters
Adjudications Officer, Business and Trade Services, Adjudications
Division, Immigration and Naturalization Service, 425 I Street, NW.,
Room 3040, Washington, DC 20536, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION:
Background
Why Are We Issuing This Regulation?
Public Law 99-239 approved the Compact between the United States
and the Government of the Republic of the Marshall Islands and the
Government of the Federated States of Micronesia, and Public Law 99-658
approved the Compact between the United States and Palau (collectively,
Compacts). Under the Compacts, the majority of citizens of these newly
formed states (parts of the former Trust Territories of the Pacific
Islands, now called the freely associated states (FAS)) became eligible
to enter, live, work, and be educated in the United States and its
territories and possessions without regard to sections 212(a)(5)(A) and
212(a)(7) (A) and (B) of the Immigration and Nationality Act (Act),
formerly sections 212(a) (14), (20), and (26). Section 141(a) of the
Compacts. Both Compacts, at section 141(b), provide that the right of
citizens of the FAS, who were admitted to the territories or
possessions of the United States pursuant to the provisions of the
Compacts, to establish habitual residence in a territory or possession
of the United States may be subject to nondiscriminatory limitations.
The Service interprets section 141(b) of the Compacts to the effect
that citizens of the FAS who enter the territories and possessions of
the United States pursuant to section 141(b) of the Compacts are
subject to limitations not only at the time they establish their
habitual residence but for the entire duration of their habitual
residence. The negotiators of the Compacts realized that while the
economy of the island territories was fragile, the vast majority of the
FAS citizens would actively participate in and be beneficial to it. On
the other hand, there would be some who would not be gainfully employed
or who would even engage in welfare fraud and thus become a burden on
the territorial economy. Section 141(b) is directed at such entrants
from the FAS. It is immaterial for the territorial economy whether this
burden exists at the time when the FAS citizen first established his or
her habitual residence in the territory or whether it occurs at a later
time. The Service cannot attribute to the parties concluding the
Compacts an intent that, once a citizen from the FAS first establishes
his habitual residence in a territory or possession, he or she is
immune from the future imposition of the limitations envisaged by
section 141(b). The Service therefore reads the word ``establishment''
as necessarily including ``maintenance,'' and uses that word
accordingly in this rule.
Section 643 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, requires the
Commissioner of the Immigration and Naturalization Service to issue
regulations regarding the ``rights of `habitual residence' in the
United States'' under the terms of the Compacts.
What Is a ``Habitual Resident''?
``Habitual resident'' refers to an individual who is an FAS citizen
who has been admitted to a territory or possession of the United States
(except the Commonwealth of the Northern Mariana Islands or American
Samoa as long as the Act has not been made applicable there) pursuant
to section 141(a) of the Compacts, and who occupies in such territory
or possession a habitual residence as that term is defined in section
461 of the Compacts, namely, a place of general abode or a principal,
actual dwelling place of a continuing or lasting nature, including
physical presence for a cumulative total of at least 365 days, and who
is not a: (1) Full-time student under the Compact provisions; or a (2)
dependent of a resident representative as described in section 152 of
the Compacts. Since the term ``habitual resident'' requires that the
person have entered the United States pursuant to section 141(a) of the
Compacts, the term does not apply to FAS citizens whose presence in the
territories or possessions is based on an authority other than section
141(a), such as members of the Armed Forces of the United States
described in 8 CFR Sec. 235.1(c), persons lawfully admitted for
permanent residence in the United States, or persons having
nonimmigrant status whose entry into the United States is based on
provisions of the Compacts or the Act other than section 141(a) of the
Compacts.
[[Page 56464]]
What Does This Regulation Accomplish?
This regulation is intended to define the rights of and limitations
on habitual residence under the Compacts. In particular, the
limitations relate to grounds for the possible removal of a habitual
resident from the United States. The increasing presence of citizens of
the FAS in the territories and possessions of the United States
requires action to ensure that the benefits to the citizens of the FAS
of employment and education in the territories and possessions, and the
economic benefit to the territories and possessions of their presence
are maintained, while simultaneously minimizing the impact on the
territories and possessions resulting from granting unlimited access of
such FAS citizens.
Where Does This Rule Apply?
This rule applies to habitual residents living in the territories
and possessions of the United States to which the Act applies. These
territories and possessions are at present Guam, the Commonwealth of
Puerto Rico, and the American Virgin Islands.
This rule does not apply to FAS citizens residing in American Samoa
or the Commonwealth of the Northern Mariana Islands, as long as the Act
does not apply to them, or to FAS citizens residing in the fifty States
or the District of Columbia.
Did the Service Publish a Rule Prior to Issuing This Final Rule?
On June 4, 1998, the Service published a proposed rule at 63 FR
30415. Written comments were to be submitted on or before August 3,
1998. The Service received three comments. The following is a
discussion of the public comments and the Service's responses.
Discussion of Comments
All commenters expressed concern with the proposed definition of
``dependents,'' in particular, limiting dependents to an unemployed
spouse, parents and unmarried children under 21 years of age. In the
opinion of one commenter, this ignores the realities of family life in
the Pacific Islands. However, it would not be workable to include
distant relatives and family friends in the definition of
``dependents,'' as the writers advocated. In addition, the need to
minimize any increase in social service expenditures by the territory
and possession governments on behalf of habitual resident dependents
renders the above-noted definition necessary.
One commenter recommended that the poverty guidelines established
by the Department of Health and Human Services (HHS) that are required
of the family unit be made applicable to the single individual with no
family. Under the proposed rule, only 40 hours of ``gainful
employment'' each week, regardless of his or her salary, were required
of such an individual. Another commenter suggested striking altogether
the requirement that the financial resources of the family unit meet or
exceed 100 percent of these poverty guidelines. Another suggestion
involved adjusting the HHS official poverty guideline standard to
reflect the actual circumstances in Guam.
The Service lacks the needed expertise in matters relating to
determining poverty guidelines to make meaningful adjustments to the
HHS official poverty guidelines so as to reflect the actual
circumstances in Guam, the territory most affected by this rulemaking.
By incorporating the requirement that a habitual resident be ``self-
supporting,'' however, the standard becomes based on the ability to
financially support oneself with regard to local conditions. Further,
``self-supporting'' is defined in the final rule as either: (a) Having
a lawful occupation of a current and continuing nature which provides
40 hours of gainful employment each week, without regard to the actual
income or size of the family (for part-time students in college or
institutions of higher learning the 40-hour requirement is reduced by
three hours for each college or graduate credit-hour of study); or (b)
in the case of a person employed for less than 40 hours a week or not
at all, having lawfully derived funds that meet or exceed 100 percent
of the official poverty guidelines for Hawaii for a family unit of the
appropriate size as published annually by HHS. This approach provides
what the Service views as a simple, fair, and flexible standard
consistent with the Compacts.
All commenters voiced concern over adequate enforcement procedures.
The writers suggested implementation of a registration system financed
from revenues collected from the Service operation on Guam. These
commenters wrote that the Service collects more revenue via fees than
it expends in fulfilling its statutory obligations on Guam. However,
the Service notes that, with the exception of a $6 Inspections user fee
that all arriving persons pay upon entering Guam by air, immigration
fees collected by the Service within Guam are not retained by the
Service but are turned over to the Treasurer of Guam, pursuant to
section 30 of the Organic Act of Guam, 48 U.S.C. 1421(h). In addition,
the Inspections user fee does not currently cover the Service's
operational costs on Guam. Appropriated funds are used to make up the
difference. Therefore, there are no surplus funds from the Inspections
user fee account that can be used to finance the enforcement efforts
advocated by the commenters.
The Service is aware of the difficulties in enforcing the proposed
rule in an ad hoc fashion. In order to address the concerns of the
commenters and to be in compliance with our own obligation to enforce
the nondiscriminatory limitations on habitual residence provided for by
the Compacts and Congress, the Service intends to work with the
Government of Guam and the United States Department of the Interior in
order to establish methods to fairly enforce the nondiscriminatory
limitations on habitual residence. (The term ``nondiscriminatory'' is
discussed in the supplementary information portion of the proposed
rule. Since the Service has made no changes in how the term is used,
there is no need here for further discussion.)
The Service will enforce the existing requirement that all
nonimmigrants, including FAS citizens entering a United States
territory, complete Service Form I-94, Arrival-Departure Record, and
turn it in, as required, upon departure. See 8 CFR 235.1(f) The Service
may extract information from the I-94 for possible enforcement purposes
and may share this information with the Government of Guam on an as-
needed basis.
The final rule, therefore, establishes the rebuttable presumption
that an FAS citizen is a habitual resident if the Service has reasons
to believe that the FAS citizen was admitted to a United States
territory more than a year ago but failed to turn in his or her I-94
upon departure, or failed to apply for a replacement arrival-departure
record. Having the correct information, as gleaned from the I-94, on a
particular FAS citizen's arrival and departure is important. Without
such information the Service will now know how much time the FAS
citizen has previously spent within the territory, and therefore may
not know whether or not the FAS citizen is a habitual resident.
This presumption approach the Service intends to use is similar to
the concept employed in a parking lot in order to determine the amount
a driver must pay for parking. Upon entering the lot, the driver gets a
ticket and then turns it in upon leaving to determine how much to pay.
If the driver loses his or her ticket, the parking lot charges the
[[Page 56465]]
driver for the maximum amount of time, since the parking lot attendant
is able to know only when the driver is leaving. The burden is always
on the driver to prove the time of entry into the parking lot. In this
example, the driver's entry is proven via the parking lot ticket.
The Service will apply the same concept to the situation at hand.
If the Service only knows when the FAS citizen was previously admitted,
the burden is on the FAS citizen to show when he or she departed. The
form itself requires that it be surrendered upon departure. The
presumption can be rebutted by evidence that the FAS citizen was not in
the territory for a total of at least 365 days and has not established
a continuing or lasting residence. If the FAS citizen can prove he or
she made an entry elsewhere on a specific date, that will demonstrate
that he or she was not in the territory between that date and the date
of his or her next application for admission to the United States
territory.
The Service notes that the definition of ``habitual resident'' has
been modified in this context in order to conform more closely to the
definition of ``habitual residence'' found in section 461 of the
Compacts. In particular, the Service notes that for an FAS citizen to
be considered a habitual resident, he or she must have a continuing or
lasting residence in the United States territory after an admission,
including physical presence for a cumulative total of at least 365
days. The fact that an FAS citizen may be a habitual resident does not
necessarily render the FAS citizen inadmissible to the United States
territory. For example, if the resident is self-supporting, he or she
may not necessarily be inadmissible.
Finally, organization of the final rule is different from that of
the proposed rule in order to comply with the plain-language
requirements currently used by Executive Branch agencies in drafting
regulations.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This rule affects relatively small communities,
primarily on Guam. Because the rule would require that the nonimmigrant
be self-supporting in order to establish and maintain habitual
residence in a territory or possession of the United States, the impact
of the rule on the local economies should be positive.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review. Accordingly, the Office of Management and Budget has waived
its review process under section 6(a)(3)(A).
Executive Order 13132
The regulation proposed will not have substantial direct effects on
the States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
Federalism implications to warrant the preparation of a Federalism
Summary Impact Statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
List of Subjects in 8 CFR Part 214
Administrative practice and procedures, Aliens, Employment, Foreign
officials, Health professionals, Reporting and recordkeeping
requirements, Students.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901, note, and 1931 note,
respectively; 8 CFR part 2.
2. Section 214.7 is added to read as follows:
Sec. 214.7 What is habitual residence in the territories and
possessions of the United States and what are the consequences thereof?
(a) Definitions. As used in this section, the term:
(1) Compacts means the agreements of free association between the
United States and the governments of the Republic of the Marshall
Islands, the Federated States of Micronesia, and Palau, approved by
Public Law 99-239 with respect to the governments of the Republic of
the Marshall Islands and the Federated States of Micronesia, and by
Public Law 99-658, with respect to Palau.
(2) Freely associated states (FAS) means the following parts of the
former Trust Territories of the Pacific Islands, namely, the Republic
of the Marshall Islands, the Federated States of Micronesia, and Palau.
(3) Territories and possessions of the United States means all
territories and possessions of the United States to which the Act
applies, including those commonwealths of the United States that are
not States. It does not include American Samoa and the Commonwealth of
the Northern Mariana Islands, as long as the Act does not apply to
them.
(4)(i) Habitual resident means a citizen of the FAS who has been
admitted to a territory or possession of the United States (other than
American Samoa or the Commonwealth of the Northern Mariana Islands, as
long as the Act is not applicable to them) pursuant to section 141(a)
of the Compacts and who occupies in such territory or possession a
habitual residence as that term is defined in section 461 of the
Compacts, namely a place of general abode or a principal, actual
dwelling place of a continuing or lasting nature. The term ``habitual
resident'' does not apply to:
[[Page 56466]]
(A) A person who has established a continuing residence in a
territory or possession of the United States, but whose cumulative
physical presence in the United States amounts to less than 365 days;
or
(B) A dependent of a resident representative described in section
152 of the Compacts; or
(C) A person who entered the United States for the purpose of full-
time studies as long as such person maintains that status.
(ii) Since the term ``habitual'' resident requires that the person
have entered the United States pursuant to section 141(a) of the
Compacts, the term does not apply to FAS citizens whose presence in the
territories or possessions is based on an authority other than section
141(a), such as:
(A) Members of the Armed Forces of the United States described in 8
CFR Sec. 235.1(c);
(B) Persons lawfully admitted for permanent residence in the United
States; or
(C) Persons having nonimmigrant status whose entry into the United
States is based on provisions of the Compacts or the Act other than
section 141(a) of the Compacts.
(5) Dependent means a citizen of the FAS, as defined in section
141(a) of the Compacts, who:
(i) Is a habitual resident;
(ii) Resides with a principal habitual resident;
(iii) Relies for financial support on that principal habitual
resident; and
(iv) Is either the parent, spouse, or unmarried child under the age
of 21 of the principal habitual resident or the parent or child of the
spouse of the principal habitual resident.
(6) Principal habitual resident means a habitual resident with whom
one or more dependents reside and on whom dependent(s) rely for
financial support.
(7) Self-supporting means:
(i) Having a lawful occupation of a current and continuing nature
that provides 40 hours of gainful employment each week. A part-time
student attending an accredited college or institution of higher
learning in a territory or possession of the United States receives for
each college or graduate credit-hour of study a three-hour credit
toward the 40-hour requirement; or
(ii) If the person cannot meet the 40-hour employment requirement,
having lawfully derived funds that meet or exceed 100 percent of the
official poverty guidelines for Hawaii for a family unit of the
appropriate size as published annually by the Department of Health and
Human Services.
(8) Receipt of unauthorized public benefits means the acceptance of
public benefits by fraud or willful misrepresentation in violation of
section 401 or 411 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2261, 2268,
as amended by sections 5561 and 5565 of the Balanced Budget Act of
1997, Public Law 105-33, 111 Stat. 638. 639.
(b) Where do these rules regarding habitual residence apply? The
rules in this section apply to habitual residents living in a territory
or possession of the United States to which the Act applies. Those
territories and possessions are at present Guam, the Commonwealth of
Puerto Rico, and the American Virgin Islands. These rules do not apply
to habitual residents living in American Samoa or the Commonwealth of
the Northern Mariana Islands, as long as the Act does not extend to
them. These rules are not applicable to habitual residents living in
the fifty States or the District of Columbia.
(c) When is an arriving FAS citizen presumed to be a habitual
resident? (1) An arriving FAS citizen will be subject to the rebuttable
presumption that he or she is a habitual resident if the Service has
reason to believe that the arriving FAS citizen was previously admitted
to the territory or possession more than one year ago; and
(2) That the arriving FAS citizen either;
(i) Failed to turn in his or her Form I-94 when he or she
previously departed from the United States; or
(ii) Failed to apply for a replacement Form I-94.
(d) What rights do habitual residents have? Habitual residents have
the right to enter, reside, study, and work in the United States, its
territories or possessions, in nonimmigrant status without regard to
the requirements of sections 212(a)(5)(A) and 212(a)(7)(A) and (B) of
the Act.
(e) What are the limitations on the rights of habitual residents?
(1) A habitual resident who is not a dependent is subject to removal if
he or she:
(i) Is not and has not been self-supporting for a period exceeding
60 consecutive days for reasons other than a lawful strike or other
labor dispute involving work stoppage; or
(ii) Has received unauthorized public benefits by fraud or willful
misrepresentation; or
(iii) Is subject to removal pursuant to section 237 of the Act, or
any other provision of the Act.
(2) Any dependent is removable from a territory or possession of
the United States if:
(i) The principal habitual resident who financially supports him or
her and with whom he or she resides, becomes subject to removal unless
the dependent establishes that he or she has become a dependent of
another habitual resident or becomes self-supporting; or
(ii) The dependent, as an individual, receives unauthorized public
benefits by fraud or willful misrepresentation; or
(iii) The dependent, as an individual, is subject to removal
pursuant to section 237 of the Act, or any other provision of the Act.
Dated: September 12, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-23788 Filed 9-18-00; 8:45 am]