Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a Federal Register Notice on November 16, 2022. With this notice, Department of Homeland Security (DHS) is automatically extending the validity of certain Temporary Protected Status (TPS) related Employment Authorization Documents (EADs); Notices of Action (Forms I-797); and Arrival/Departure Records (Forms I-94), (collectively “TPS-related documentation”) for those beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024, from the current expiration date of December 31, 2022.
DHS announced these actions to ensure its continued compliance with the preliminary injunction orders of the U.S. District Court for the Northern District of California in Ramos, et al. v. Nielsen, et. al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) (“Ramos”) and with the order of the U.S. District Court for the Northern District of California to stay proceedings in Bhattarai v. Nielsen, No. 19- cv-00731 (N.D. Cal. Mar. 12, 2019) (“Bhattarai”).
Beneficiaries under the existing (TPS) designations for El Salvador, Nicaragua, Honduras, and Nepal, the 2011 designation of Haiti, and the 2013 designation of Sudan will retain their TPS while the preliminary injunction in Ramos and the Bhattarai orders remain in effect, provided that their TPS is not withdrawn because of individual ineligibility. They may also apply under the more recent designations of Haiti and Sudan in 2021 and 2022, respectively, and if granted, will retain TPS in accordance with their grants regardless of any potential end to the Ramos injunction. Other individuals who have been newly granted TPS under the 2021 designation of Haiti and the 2022 designation of Sudan, but who did not have TPS at the time of those designations, are not covered by this litigation compliance notice. Their TPS grants remain valid in accordance with their individual notices of approval from USCIS.
The Secretary of DHS had announced new 18-month designations of Haiti and Sudan for TPS, which continue through February 3, 2023 and October 19, 2023, respectively. Application procedures for TPS under the new Haiti and Sudan designations, including for individuals who currently have TPS pursuant to the court orders, are provided in the notices published at 86 FR 41863 and 87 FR 23202.
How to Qualify for this Automatic Extension of TPS-related documentation?
To Qualify for this Extended TPS the TPS beneficiary has to continue to meet the eligibility requirements for TPS described in immigration law and regulations. You may NOT be eligible to maintain your existing TPS if you:
- Have been convicted of any felony or two or more misdemeanors committed in the United States;
- Are found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
- Are subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity;
- Fail to meet the continuous physical presence and continuous residence in the United States requirements; [any foreign travel without an approved TPS travel document breaks the continuous physical presence requirement]
- Fail to meet initial or late initial TPS registration requirements; or
- If granted TPS, you fail to re-register for TPS, as required, without good cause.
Late Filing of TPS if you failed to file before
Late Re-Registration for TPS
USCIS may accept a late re-registration application if you have good cause for filing after the end of the re-registration period of your country. You must submit a letter that explains your reason for filing late with your re-registration application.
If you file your TPS re-registration application late, processing may be delayed and can lead to gaps in your work authorization.
Late Initial Filing for TPS
You can apply for TPS for the first time during an extension of your country’s TPS designation period. If you qualify to file your initial TPS application late, you must still independently meet all the TPS eligibility requirements listed in the Eligibility section above.
To qualify to file your initial TPS application late, you must meet at least one of the late initial filing conditions below:
- During either the initial registration period of your country’s designation or during any subsequent initial registration period if your country was re-designated you met one of the following conditions, and you register while the condition still exists or within a 60-day period immediately following the expiration or termination of such condition
- You were a nonimmigrant, were granted voluntary departure status, or any relief from removal
- You had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending or subject to further review or appeal
- You were a parolee or had a pending request for re-parole
- You are a spouse of an individual who is currently eligible for TPS
- During either the initial registration period of your country’s designation or during any subsequent initial registration period if your country was re-designated you were a child of an individual who is currently eligible for TPS. There is no time limitation on filing if you meet this condition. So if your parent is currently eligible for TPS and you were his or her child (unmarried and under 21 years old) at any time during a TPS initial registration period for your country, you may still be eligible for late initial filing even if you are now over 21 years old or married. You may file during an extension of your TPS designated country.
Please check your country-specific web page for the dates of the initial registration period or periods that apply for late initial filing.
Litigation History on TPS
The U.S. Court of Appeals for the Ninth Circuit vacated the district court’s preliminary injunction in Ramos on September 14, 2020, holding that the decision to designate, extend, or terminate TPS is not subject to judicial review. However, the appellate order is not currently effective because the Ninth Circuit has not issued any directive (i.e. the mandate) to the district court to implement the panel’s decision (Ramos, et al., v. Wolf, et al., No. 18-16981 (9th Cir., September 14, 2020). The plaintiffs have filed a request for a hearing en banc which is pending. Therefore, the Ramos preliminary injunction remains in effect.
The parties in Saget, et. al., v. Trump, et. al., No. 18-cv1599 (E.D.N.Y. Apr. 11, 2019) (“Saget”) entered into a Stipulation of Dismissal as the case was rendered moot due to the Aug. 3, 2021, FRN implementing the new Haiti designation.
In addition, the order of the district court in Bhattarai staying proceedings and approving the parties’ stipulated agreement to continue TPS and TPS-related documentation for eligible beneficiaries from Nepal and Honduras remains in effect.
What if the injunction is fully vacated by Court of Appeals or No Legislative or Executive Action on TPS?
Should the Government ultimately prevail in its challenge to the Ramos
preliminary injunction and absent any further change with respect to TPS designations for El Salvador, Nicaragua, Honduras, or Nepal, the Secretary’s determination to terminate TPS for any of those countries will take effect no earlier than 365 days from the issuance of any appellate mandate to the district court or upon the expiration of this Federal Register notice’s extension of TPS-related documents on June 30, 2024, whichever is
Background on TPS
- TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the Immigration and Nationality Act (INA) or to eligible persons without nationality who last habitually resided in the designated foreign state, regardless of their country of birth.
- During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work as long as they continue to have TPS. They may apply for and receive EADs as evidence of employment authorization.
- TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion.
- To qualify for TPS, beneficiaries must meet the eligibility standards under INA.
- When the Secretary terminates a foreign state’s TPS designation, beneficiaries return to one of the following:
- The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or been terminated); or
- Any other lawfully obtained immigration status or category they received while registered for TPS, as long as it is still valid on the date TPS terminates.
American Immigration Council states that the TPS provides to the nationals of certain countries experiencing problems that make it difficult or unsafe to deport them back to those countries.
Earlier, USCIS had published Federal Register notice on September 10, 2021 about the Temporary Protected Status (TPS). That notice extended the continuation of TPS for Beneficiaries of TPS designations for Nepal, Honduras, El Salvador, Nicaragua and Sudan for nine months through December 31, 2022.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
You can contact us at (+1) 202 600 7742, or email us at email@example.com if you will have any question on this topic. You can also reach us to learn about our legal services or complete the Form to request an Attorney Consultation.