; and (B) the individual was sentenced to time in custody of 90 days or less. (4) Secretary The term Secretary means the Secretary of Homeland Security. (5) Significant misdemeanor The term significant misdemeanor means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien’s immigration status) for which the maximum term of imprisonment is greater than five days and not greater than one year that— (A) regardless of the sentence imposed, is a crime of domestic violence (as defined in section 237(a)(2)(E)(i)) or an offense of sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence if the State law requires, as an element of the offense, the operation of a motor vehicle and a finding of impairment or a blood alcohol content of .08 or higher; or (B) resulted in a sentence of time in custody of more than 90 days, excluding an offense for which the sentence was suspended. (6) Threat to national security An alien is a threat to national security if the alien is— (A) inadmissible under section 212(a)(3); or (B) deportable under section 237(a)(4). (7) Threat to public safety An alien is a threat to public safety if the alien— (A) has been convicted of an offense for which an element was participation in a criminal street gang (as defined in section 521(a) of title 18, United States Code); or (B) has engaged in a continuing criminal enterprise (as defined in section 408(c) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. 848(c) )). (b) Authorization The Secretary— (1) shall grant provisional protected presence to an alien who files an application demonstrating that he or she meets the eligibility criteria under subsection (c) and pays the appropriate application fee