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05.28.19

DHS extends Temporary Protected Status for six countries as a result of court challenges

By notice dated May 10, 2019, the Department of Homeland Security (DHS) announced they will not implement or enforce their prior decision to terminate Temporary Protected Status (TPS) for nationals of Honduras or Nepal pending resolution of ongoing litigation in that matter. The May 10, 2019 notice follows a similar notice, issued on March 1, 2019, announcing the TPS designations for Sudan, Nicaragua, Haiti and El Salvador will remain in effect pending resolution of ongoing litigation challenging the Trump administration’s decision to terminate TPS for those countries.

What is Temporary Protected Status?

TPS is a temporary immigration status granted to individuals who are already in the U.S. and who are unable to safely return to their home countries because of temporary conditions in those countries. DHS may designate a country for TPS for reasons such as an ongoing armed conflict, environmental disaster (such as an earthquake or hurricane), epidemic or other "extraordinary and temporary conditions." Nationals of a designated country who apply for, and are granted TPS, are not removable from the U.S. and are granted work authorization for the duration of the TPS designation. DHS may terminate a TPS designation if it determines the country "no longer continues to meet the conditions" for TPS designation (i.e., there are no barriers to the safe return of its nationals).

The Trump administration had previously announced their decisions to terminate the TPS designations for nationals of Sudan, Nicaragua, Haiti, El Salvador, Honduras and Nepal. Those decisions were subsequently challenged in two separate lawsuits (Ramos v. Nielson and Bhattarai v. Nielson). Both suits argue the decisions to terminate TPS for these countries violates the Administrative Procedure Act (APA) and Equal Protection, and have resulted in nationwide injunctions blocking the Trump administration from enforcing their decisions to terminate TPS for these countries.

What are the new TPS expiration dates for these countries?

Assuming the applicant otherwise remains eligible for TPS, and previously re-registered for TPS during the applicable registration period(s), the March 1, 2019 notice automatically extends through January 2, 2020 the validity of TPS-related Employment Authorization Documents (EADs) and related immigration documents for TPS beneficiaries from Sudan, Nicaragua, Haiti and El Salvador. Similarly, the May 10, 2019 notice automatically extends the TPS EADs and related documents for nationals of Nepal through March 24, 2020, and nationals of Honduras through January 5, 2020.

Both the March 1, 2019, and May 10, 2019, notices provide employers with specific instructions regarding how to properly complete a Form I-9, Employment Eligibility Verification, based on an extended TPS EAD.

Importantly, the above expiration dates are subject to change. In the event the preliminary injunctions are reversed, and that reversal becomes final, the notices state DHS will allow for an "orderly transition period" allowing TPS beneficiaries to depart the U.S. either (1) 120 days from the effective date of a final reversal order; or (2) DHS’s previously announced TPS termination date for that country, whichever is later. In addition, DHS reserves the right to issue future notices regarding the TPS designations for Sudan, Nicaragua, Haiti, El Salvador, Honduras, and Nepal.

Considering the fluid nature of the TPS designations for these countries, TPS beneficiaries should consult with immigration counsel regarding the status of their respective TPS designation.