INS on Kosovo Province TPS Program

Memorandum To: ALL RODIRS, ATTN ROADN, ROCOU
ALL DIDIRS; ATTN DIEXM, DINV, DIDDP
ALL OICS
ALL CPAS
ALL DIRS ODTF

From: Joseph R. Greene Acting Associate Commissioner
Office of Programs

Subject: Designation of Kosovo Province in the Republic of Serbia of the State of the Federal Republic of Yugoslavia (Serbia-Montenegro) Under Temporary Protected Status (TPS)

The Attorney General has approved a Temporary Protected Status (TPS) program in the United States for eligible residents of Kosovo Province (and for eligible aliens having no nationality who last habitually resided in Kosovo Province) based on the finding that this province is experiencing an ongoing armed conflict. The notice, published in the Federal Register on June 9, 1998, is attached to this memorandum.

The TPS designation for Kosovo Province, as well as the registration period for it, will last until June 8, 1999. The applicant must have been continuously physical present and continuously resided in the United States before June 9, 1998, and be otherwise eligible.

For in-depth guidance on TPS processing, officers should refer to the Standard Operations Procedures for TPS memorandum, dated October 10, 1997. In addition, officers shall refer to specific information contained below regarding the implementation of the TPS program for Kosovo Province.

The designation of Kosovo Province under TPS is the first instance in which a part of a State, rather than an entire State, has been approved for implementation of a TPS program. Therefore, problems regarding proof of residence will be greater than in a case where an entire State has been designated.

The province of Kosovo has a population of approximately two million inhabitants. Kosovar Albanians comprise about 90% of this population of two million, with the remaining 10% of the population being ethnic Serbs. The Attorney General has estimated that there are no more than 5,000 residents of Kosovo Province who have been continuously physically present and have continuously resided in the United States since June 9, 1998.

1) Basic Eligibility. Residents of Kosovo Province (and stateless aliens who last habitually resided in Kosovo Province) may be eligible for TPS if they have “continually resided” and been “continuously physically present” in the United States since 9 June 1998. Eligibility requirements are set forth in 8 CFR 244.2 (formerly 8 CFR 240.2). The grounds of ineligibility and inadmissibility apply as specified for TPS by 8 CFR 244.2, 244.4 (formerly 8 CFR 240.3 and 240.4).

2) Documents to establish residence in Kosovo Province. The international version of the Yugoslav birth certificate is obtainable only through the official holder of records. Valid Yugoslav birth certificates are issued on limited edition, numerically controlled, international forms. Note that a fraudulent version of this form with blank fields for the place and date of birth can be purchased throughout Yugoslavia. The fraudulent form may contain a forged seal and signature that appear to be official.

The Yugoslav passport in indicative of an applicant’s last place of residence because such passports are issued only by a Ministry of Interior Office at the place of residence. Therefore, any applicant for TPS based upon residence in Kosovo Province who presents a passport not issued in Kosovo, is presumed to be ineligible for benefits under this program. Further information regarding the specific nature and types of Yugoslav passports, as well as other means by which applicants may establish residency in Kosovo Province, will be forthcoming in subsequent memorandum.

3) Application and Filing. All Kosovo Province TPS applicants must file an application for Temporary Protected Status, Form I-821, together with an Application for Employment Authorization, Form I-765. A fee of $50.00 must accompany Form I-821, unless a properly documented fee waiver is submitted. A fee of $70.00 must accompany Form I-765, unless a properly documented fee waiver is submitted or unless the applicant does not request employment authorization. All TPS applications and related applications for employment authorization continue to be filed at local INS offices at this time. In accordance with new fingerprinting procedures, TPS applicants should not submit fingerprints with their applications, but will be scheduled by Nebraska Service Center (NSC) to appear at designated Application Support Centers to be fingerprinted at a later date. The ASC will forward the fingerprints to the FBI in accordance with established fingerprint procedures. See field memorandum of March 27, 1998. HQ 70-33. Otherwise eligible TPS applications should usually be adjudicated without waiting for a definitive response from the FBI.

Each application must also include two identification photos, evidence of identity and residence in Kosovo Province, and proof of residence in the United States. When affidavit evidence is relied upon, the applicant needs to submit his or her own affidavit plus two supporting affidavits from other persons who have knowledge of the event or fact being proved.

4) EAD Generation. In EAD processing, key in the TPS expiration date of “06/08/99” for Kosovo Province. In order to reach this expiration date, the EAD employment start date for Kosovo Province must not be earlier than “06/09/98.” To obtain the proper software or for other software problems call the INS Help Desk at 202/514-1851.

5) Detainees. Residents of Kosovo Province (and stateless aliens who last habitually resided in Kosovo Province) who appear to be eligible for TPS must be released from INS detention. Each office shall immediately review the A-files of any resident of Kosovo Province presently detained in their area of jurisdiction to determine apparent eligibility for TPS. Criminal grounds can result in TPS ineligibility under 8 CFR 244.3(C)(1) or 244.4(a) [formerly 8 CFR 240.3(C)(1) and 240.4(a)].

If it appears the alien is eligible for TPS, he or she shall be released from service custody pursuant to the procedural steps listed in Attachment A.

6) Implications of Section 212(a)(9)(B) for TPS Applicants. Residents of Kosovo Province in the United States protected under the TPS program are considered to be in a period of stay authorized by the Attorney General and have not accrued any unlawful presence for purposes of section 212(a)(9)(B)(i) of the Act for as long as the temporary protection has been in effect. However, any periods of unlawful presence that may have accrued before the temporary protection was granted (but after April 1, 1997), and after such protection ceased to be in effect are counted towards the periods of unlawful presence described in section 212(a)(9)(B)(i) and 212(a)(9)(C) of the Act. Refer to the Service’s policy memorandum of June 17, 1997. (IIRAIRA) memo #96 Act 043).

Note that section 212(a)(9)(B)(iii) of the Act provides that certain periods of presence in the United States are not considered unlawful. This exemption includes time spent in the United States while the alien is: (a) under the age of 18; (b) a bona fide applicant for asylum (including time while administrative or judicial review is pending), unless employed without authorization, (c) under family unity protection pursuant to section 301 of the Immigration Act of 1990, as amended; or (d) a battered spouse or child able to establish a substantial connection between the status violation/unlawful entry and the abuse. Refer to the Service’s policy memorandum of June 17, 1997 (IIRAIRA memo #96 Act 043).

7) The Office of Field Operations has concurred with this wire. All operational regional program units should familiarize themselves with this memo and related procedures in order to be responsive to any inquiry from the field. Questions regarding the implementation of this memo may be directed through appropriate supervisory channels to HQADN, ATTN: George Raftery Adjudication Officer, 202/305-3199.

Attachments:

Attachment A, Treatment of Detained Residents of Kosovo Province During the TPS Registration Period
Attachment B, Federal Register Notice Designating Kosovo Province Under TPS

[Editor’s Note: Attachments are available as Reprint No: 31-0798.]