Temporary Protected Status (TPS) is a designation that the Secretary of the Homeland Security may use when a foreign country’s conditions prevent the country’s nationals, living in the US, from returning safely or where the country is unable to handle the return of its nationals adequately. As its name implies, the designation is given to a country due to temporary conditions, such as:
TPS is a temporary benefit that affords eligible individuals the following benefits during a designated period of time:
TPS is a temporary benefit that does not lead to a green card (lawful permanent resident status), however individuals who have been granted TPS cannot be prevented from:
To be eligible for TPS an individual:
TPS for Nicaragua, was designated on January 5, 1999, due to devastation caused by Hurricane Mitch. On November 6, 2017, TPS for Nicaragua was terminated, effective January 5, 2019. Individuals who already have TPS must re-register by February 13, 2018, in order to maintain their TPS.
TPS for Honduras was designated on January 5, 1999, due to devastation caused by Hurricane Mitch. On November 6, 2017, the Secretary of Homeland Security was unable to make a determination whether to terminate TPS for Honduras. As a result, TPS for Honduras was automatically extended to July 5, 2018, to allow the Secretary of Homeland Security to perform additional fact finding, prior to making a decision to terminate TPS for Honduras.
TPS for El Salvador was designated on March 9, 2001, due to a series of earthquakes that occurred in early 2001. On January 8, 2018, TPS for El Salvador was terminated, effective September 9, 2019. TPS for El Salvador is currently valid until March 9, 2018. Prior to March 9, 2018, the Secretary of Homeland Security must publish information regarding the final re-registration period for El Salvador.
TPS for Haiti was designated on January 21, 2010, due to a 7.0-magnitude earthquake that occurred on January 12, 2010. On November 20, 2017, TPS for Haiti was terminated, effective July 22, 2019. TPS for Haiti is currently valid until January 22, 2018. Prior to January 22, 2018, the Secretary of Homeland Security must publish information regarding the final re-registration period for Haiti.
TPS remains in effect for Nepal, Somalia, South Sudan, Syria, and Yemen, while TPS for Sudan was terminated on September 18, 2017, effective November 2, 2018.
Logistics of Termination
For affected countries, foreign nationals must re-register for TPS with USCIS, by filing Form I-821 and paying $85, prior to the designated re-registration period for their county. Failure to timely re-registration, will result in their loss of status, at which time ICE can detain and place those individuals in removal proceedings or remove them from the US, depending on their prior immigration history. In accordance with USCIS policy, an application for re-registration is timely filed once it is received by USCIS by the designated deadline. Failure on the part of the US Postal Service or a private courier to timely deliver an application to USCIS, does not excuse an applicant’s failure to comply with a designated deadline.
Individuals who require work authorization must file Form I-765 and pay $410 for USCIS to re-issue them a valid EAD during their final TPS designation. Currently, USCIS is taking up to 180 days to process requests for EAD, as a result USCIS is auto-extending TPS holders’ expired EAD’s for 180 days, if an applicant timely re-registered for TPS, while they await production of their new EAD . In most, if not all states, a valid EAD is required before an applicant can obtain a drivers license. In some states, applicants are reporting that they are unable to renew their drivers license, as a result of USCIS backlogs, even when the EAD is auto-extended, as the actual card in the applicant’s possession is expired.
Plausibility of Obtaining Alternate Status Prior to Expiration of TPS
The CHBA urges all individuals affected by termination of TPS, to seek counsel from a competent immigration attorney, IMMEDIATELY.
Many individuals that have been granted TPS status, have an outstanding order of deportation, which will be executed by ICE once TPS is terminated for their respective country. A competent immigration attorney may be able to re-open removal proceedings and rescind an order of deportation, which then allows the individual to pursue other forms of relief before the Immigration Judge. Failure to rescind the order of deportation will result in an individual being picked up at work/their home, placed in ICE custody, not eligible for bond, and removed from the US as soon as practicable.
Being a TPS holder, does not automatically entitle an individual to a green card. A benefit of TPS, is that an applicant is eligible to request permission to travel outside the US, called Advance Parole, while maintaining TPS. For many individuals, Advance Parole offers them an opportunity to later file for a green card. Typically, an individual must have entered the US with a visa to be able to later apply for a green card (for example: based on marriage to a US citizen). If an individual had initially entered the US without a visa, Advance Parole functions as a lawful admission/inspection by CBP, which may later allow an individual to apply for a green card within the US if they have a qualifying family member or employer to petition them. A competent immigration attorney will need to process the paperwork for Advance Parole as quickly as possible, so that an individual can travel and return to the US prior to termination of TPS for their respective country .
Unless an individual has a family member or employer that can immediately petition them for a green card, options are very limited for TPS holders to remain in the US. Some individuals will be placed in removal proceedings where they can apply for Asylum or Non-LPR Cancellation of Removal, but representation by a competent immigration attorney is essential to the success of these types of cases. An application for Asylum, by law, must have been filed with USCIS or the Immigration Court within 1 year of entering the US . There are exceptions to the 1 year filing deadline, which is why a competent immigration attorney is essential. Non-LPR Cancellation of Removal requires an individual to have lived in the US for over 10 years and have US citizen or LPR parents, spouse, or children under the age of 21, to apply for a green card before the Immigration Court. A competent immigration attorney should represent an individual in this type of case, as a showing of hardship is required to obtain a green card and each Immigration Judge has their own standards for a hardship finding.
The CHBA urges current TPS holders, effected by termination of their status, to begin seeking counsel NOW from a competent immigration attorney. There is no stand-alone form that a notario can file with USCIS to obtain a green card for a former TPS holder. Once TPS is terminated for a specific country, affected individuals will either be deported immediately, face an immigration judge, or be able to apply for a green card as a result of a qualifying family member or employer .
ICE will not afford former TPS holders additional time to get their affairs in order or allow them to remain in the US while their US citizen children complete school. ICE will view the notice on the USCIS website that TPS has been terminated, with the effective dates 12-18 months in the future, as sufficient warning and time to make travel arrangements.
Many TPS holders have been in the US since 1999 and never previously filed for Asylum, therefore their asylum applications can be denied, simply because they are untimely, if filed for the first time in 2019.
If a TPS holder is currently eligible for a green card now based on a qualifying family member or employer, they should not wait until TPS expires, as USCIS is taking 9-12 months to adjudicate most applications.