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10.30.19

Bilateral deal between El Salvador and U.S. will extend Temporary Protected Status

BY Jason Gerrol

The Department of Homeland Security (DHS) may designate a country for Temporary Protected Status (TPS) when conditions in that country prevent the safe return of its nationals. El Salvador was initially designated for TPS on March 9, 2001, after a series of earthquakes struck El Salvador, and that designation has been extended as a result of subsequent natural disasters. However, on January 8, 2018, the Trump administration announced it was terminating the TPS designation for El Salvador, effective September 9, 2019. The fate of beneficiaries under the TPS designation for El Salvador has been in limbo ever since, but a bilateral deal between the U.S. and El Salvador announced October 28, 2019 will extend the work authorization of El Salvadorans with TPS through January 4, 2021. However, the deal may also represent the Trump administration's final push to terminate El Salvador's TPS designation and further implement its immigration policy in the region.

What was the status of the TPS designation for El Salvador before the bilateral deal?

As noted, the Trump administration had previously announced it was terminating the TPS designation for El Salvador, effective September 9, 2019. That decision was quickly challenged in court, and on October 3, 2018, a California federal judge issued a preliminary injunction against the Trump administration's decision to terminate TPS for nationals of El Salvador (as well as Haiti, Nicaragua, and Sudan), finding there were "serious questions" about the administration's decision to terminate TPS for these countries. As of the date of this post, the injunction remains in place and litigation in this matter remains ongoing.

As a result of the injunction, on March 1, 2019, DHS issued a notice announcing the TPS designations for El Salvador (as well as Haiti, Nicaragua, and Sudan) will remain in effect pending resolution of the court challenge, and work authorization would be automatically extended through January 2, 2020. Furthermore, in the event the preliminary injunction is reversed, and that reversal becomes final, the March 1, 2019 notice requires TPS beneficiaries to depart the U.S. 120 days from the effective date of the final reversal order.

What will happen under the bilateral deal?

As a result of the bilateral deal, the work authorization for El Salvadoran TPS beneficiaries will be extended through January 4, 2021. Furthermore, the bilateral deal will provide El Salvadoran TPS beneficiaries an additional 365 days to depart the U.S. after conclusion of the TPS-related litigation (as opposed to the 120 days provided in the March 1, 2019 notice).

In addition, the bilateral deal provides for a number of joint arrangements between the U.S. and El Salvador, or what DHS refers to as a "comprehensive approach to irregular migration" in the region. For example, the U.S. will send officials from U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to "advise and mentor" their El Salvadoran counterparts "to further enhance their current operation model and share best practices." Furthermore, the U.S. and El Salvador will implement an "expansion of biometric data collection and information sharing" in order to "prevent and combat crime and other threats to public security." The joint arrangements follow a September 20, 2019 Asylum Cooperative Agreement between the U.S. and El Salvador, which critics claim will provide the mechanism for migrants seeking asylum in the U.S. to be sent to El Salvador instead (the U.S. has entered into similar arrangements with Guatemala and Honduras).

Despite the ongoing litigation over the TPS designation for El Salvador (and other countries), the bilateral deal's intention is clearly to end the TPS designation for El Salvador and initiate a process to repatriate El Salvadoran TPS beneficiaries to El Salvador. El Salvadoran TPS beneficiaries should be sure to consult with immigration counsel regarding the deal's impact.

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Jason Gerrol

Of Counsel

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