Copland and Brenner

Table of Contents

1. Devastation in Haiti: The Aftermath

1. Devastation in Haiti: The Aftermath

   As is well known, on January 12, 2010 the Republic of Haiti suffered a 7.0 magnitude earthquake, the epicenter of which was offshore, approximately 15 kilometers from the capital of Port-au-Prince. The earthquake has been described as the worst in the region in 200 years. It is estimated that two to three million of Haiti’s nine million people live, or lived, within the zone of moderate to heavy structural damage. On January 27, Haitian President Rene Preval stated that nearly 170,000 bodies had been recovered.

   Haiti, a country slightly smaller than the state of Maryland, shares the island of Hispaniola with the Dominican Republic to its east. The country is home to approximately nine million people, and is the poorest country in the Western Hemisphere. According to The World Factbook of the Central Intelligence Agency, 80 percent of the population lives under the poverty line, with 54 percent in abject poverty. There is widespread unemployment and underemployment, with more than two-thirds of the labor force lacking formal jobs. Located in the middle of Caribbean hurricane belt, Haiti is subjected to severe storms, including Hurricanes Gustav, Hanna and Ike during summer 2008. In addition, Haiti has suffered from political unrest and violence for much of the 200 years since declaring independence from France in 1804.

   In the immediate aftermath of the January 12 earthquake, already severe conditions in Haiti deteriorated to desperation on a number of fronts. Severe damage to critical infrastructure, including means of transportation, communications systems, and medical facilities, hampered rescue and aid efforts. Lack of water and food, as well as concerns about sanitation issues, led to widespread concerns that the death toll from the earthquake itself would be only the beginning.

   In light of the readily apparent consequences of the earthquake, Bernard P. Wolfsdorf, president of the American Immigration Lawyers Association (“AILA”), wrote to U.S. Department of Homeland Security (“DHS”) Secretary Janet Napolitano on January 13, asking that Haiti be quickly designated for Temporary Protected Status (“TPS”). TPS is authorized under Section 244 of the Immigration and Nationality Act (“INA”) in cases where:

   - there is an ongoing armed conflict in a foreign state and return of nationals to that state would “pose a serious threat to their personal safety”
   - “there has been an earthquake, flood, drought, epidemic, or other environmental disaster resulting in a substantial, but temporary, disruption of living conditions in the are affected,” the foreign state is unable to handle adequately the return of its nationals, and has officially requested designation for TPS
   - extraordinary and temporary conditions exist in the foreign state that prevent aliens who are its nationals from returning in safety, unless permitting them to remain temporarily in the U.S.A. is contrary to the U.S national interest

   A designation for TPS will not become effective unless notice is published in the Federal Register. When designated, the applicable period of TPS takes effect on the date of publication (or a later date if specified in the notice), with an initial period to run not less than six months, and not more than 18 months. TPS may be renewed if the conditions for designation continue, for periods of 6, 12 or 18 months.

   TPS Designation for Haiti: On January 21 DHS heeded the call and published notice in the Federal Register that Haiti was designated for TPS for a period of 18 months, due to “extraordinary and temporary conditions” there. Under the notice, “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 this notice, may apply for TPS within the 180-day registration period” beginning January 21. “These nationals also may apply for employment authorization documents and for permission to depart from and return to the United States.” The designation of Haiti for TPS, effective January 21, will remain in effect until July 22, 2011. The 180-day registration period will remain in effect until July 20, 2010.

   In order to be eligible for TPS, aliens must also be admissible as immigrants, and must not be ineligible under grounds that include a conviction “of any felony or 2 or more misdemeanors committed in the United States.” Eligible aliens must apply for TPS by filing Form I-821 (Application for Temporary Protected Status), with the applicable $50 fee. Those who are unable to pay the filing fee “may submit a fee waiver request with appropriate documentation.” Aliens applying for TPS may also apply for an employment authorization document by filing Form I-765 along with the filing fee of $340; those 14 years of age or older must also submit a biometric services fee of $80. Fee waiver requests may also be submitted in lieu of the I-765 and biometrics filing fees. Specific addresses must be utilized for TPS and any accompanying employment authorization applications, as specified in the notice.

   Notably, eligible aliens in removal proceedings may apply for TPS and employment authorization. It is estimated that 100,000 – 200,000 aliens will be eligible under the TPS designation for Haiti.

   While most were pleased with this development, some have been critical of certain aspects of application requirements. One area of criticism involves applicable fees, which come to $470 for an alien 14 years of age or older, and who is applying for both TPS and employment authorization. According to the World Health Organization, gross national income per capita in Haiti is US$1,070. According to the World Bank, the country relies on remittances of approximately $1.5 - 2 billion from overseas workers to support family members at home. The global economic downturn that began in the latter part of 2008 initiated a period of lower remittances to Haiti, which, at the same time, was literally digging out from the devastating hurricane season that year. For these reasons, many of those otherwise eligible to apply for TPS and employment authorization are hardly in a position to afford the filing fees established under the notice.

   Matthew Chandler, a spokesman for DHS, is quoted in a January 28 article in The New York Times as stating that filing fees are set by Congress, and that only Congress could allow a blanket fee waiver. In fact, it is questionable whether any fee at all must be charged for TPS or any associated employment authorization document. Section 286 of the INA sets forth how moneys collected under the statute is to be disposed of; subsection (j) specifies that the Secretary of Homeland Security “may prescribe such rules and regulations as may be necessary to carry out the provisions” of that section. Subsection (m) states that fees for adjudication “may be set at a level that will ensure recovery of the full costs of providing all such services” and “may also be set at a level that will recover” administration of the fees collected. (emphasis added)

   With respect to TPS, Section 244(a)(1)(B) of the INA states that the DHS Secretary “shall authorize the alien to engage in employment in the United States and provide the alien with an ‘employment authorized’ endorsement or other appropriate work permit.” Under subsection (2), such work authorization “shall be effective throughout the period the alien is in” TPS. Subsection (c)(1)(B), regarding registration fees, states that the Secretary “may require payment of a reasonable fee as a condition of registering an alien” for TPS, which “shall not exceed $50.” (emphasis added) A separate, additional fee may be imposed to provide eligible aliens with documentation of work authorization. Accordingly, while the imposition of any fee for TPS or associated employment authorization is permissible under the INA, it is hardly mandatory.

   The agency’s own regulations acknowledge as much, providing that the amount of any filing fee for TPS is “not to exceed fifty dollars,” and that the exact amount “will be determined at the time a foreign state is designated for” TPS. 8 CFR 103.7(b) Since the agency did impose filing fees for both TPS registration and employment authorization, the only way an alien can seek to avoid that financial burden is to apply and qualify for a fee waiver.

   8 CFR Section 103.7(c) sets forth general guidance regarding fee waivers, and specifies at subsection (5)(i) that the fees for biometrics and Form I-765 may be waived. Separate provisions at 8 CFR Section 244.20 provide for a fee waiver relating to TPS. An applicant seeking such a waiver must establish “that it is more probable than not that” his or her gross income for the three preceding months was equaled or exceeded by “essential expenditures” (limited to rent, utilities, food, transportation to and from work), plus “any essential extraordinary expenditures” such as medical expenses, clothing, laundry and child care. An applicant must show that those expenditures during the three preceding months “were reasonable and essential to his or her physical well-being or to earning a livelihood.”

   An affidavit must be submitted establishing the foregoing; if the adjudicating officer finds the information and documentation to be inaccurate or insufficient, additional documents may be required – including employment records, pay stubs, Forms W-2, income tax returns, rent receipts, bills for essential utilities, and documentation of all assets owned by the applicant or his or her dependents. In requiring additional information, an adjudicating officer “should consider that some applicants may have little or no documentation to substantiate their claims” and 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 is unavailable.”

   Since many applicants for TPS are likely part of the informal economy, a significant percentage may find it difficult or impossible to satisfy the documentary requirements for a fee waiver. Otherwise eligible aliens may also face difficulty in establishing that TPS should be available to them because they lack documentary evidence that they are nationals of Haiti, or that they were present in the U.S.A. on January 12.

   Humanitarian parole: Meanwhile, on January 18, DHS Secretary Napolitano announced that the agency would allow orphaned children from Haiti to enter the U.S.A. temporarily so that they can be united with their American adoptive parents. The policy applies to two groups:

   - children who have been legally confirmed as orphans eligible for intercountry adoption by the Haitian government, were in the process of being adopted by Americans prior to January 12, and can satisfy criteria involving evidence of availability for adoption and suitability for adoption
   - children who have been indentified by an adoption service provider or facilitator as eligible for intercountry adoption, were matched to prospective American adoptive parents prior to January 12, and can satisfy criteria establishing significant evidence of a relationship between the prospective adoptive parents and the child and the parents’ intention to complete the adoption, along with evidence of availability for adoption and suitability for adoption

   Children who are brought to the U.S.A. under this humanitarian parole policy will have to adjust their status to that of lawful permanent resident in order to remain permanently with their adoptive families. According to a January 20 report in The New York Times, the new policy “affects only 900 children whom the Haitian government had already identified as orphans,” while “[t]ens of thousands are believed to have been orphaned in the quake.” Complicating matters is a history of illegitimate orphanages in Haiti, some of which “are fronts for traffickers who buy children from their parents and sell them to couples in other countries.

   For those with legitimate adoption claims, a wealth of information is available online at www.uscis.gov, and clicking on the link to “Information About Response to Haiti.”