DHS Continues to Extend TPS Status for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan in Compliance with Court Orders

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At a glance

• Complying with federal court orders, DHS will continue to preserve Temporary Protected Status (TPS) for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, while lawsuits challenging the termination of TPS for these countries continue.
• The validity of TPS-related documentation, including employment authorization documents, for nationals of the six countries will be automatically extended through January 4, 2021.
• TPS-related documentation for El Salvador, Haiti, Nicaragua and Sudan had been set to expire on January 2, 2020, for Honduras on January 5, 2020, and for Nepal on March 24, 2020. 

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The situation

The Department of Homeland Security (DHS) will continue to preserve Temporary Protected Status (TPS) designations for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan while challenges to DHS’s decision to terminate TPS for these countries continue, according to a notice that will be published in Monday’s Federal Register. The temporary extensions will ensure the government’s ongoing compliance with preliminary injunction orders issued by the U.S. District Court for the Northern District of California in Ramos, et al. v. Nielsen, et. al. and the U.S. District Court for the Eastern District of New York in Saget, et. al. v. Trump, et. al., and with the order of the U.S. District Court for the Northern District of California to stay proceedings in Bhattarai v. Nielsen.

This is the second extension of TPS-related documentation for each country in connection with these lawsuits.  El Salvador, Haiti, Nicaragua and Sudan had been set to expire on January 2, 2020, Honduras on January 5, 2020, and Nepal on March 24, 2020. 

Today’s announcement comes days after a bilateral agreement between the United States and El Salvador where the United States agreed to extend TPS-related work authorization for Salvadorans for an additional 12-months, but did not explicitly extend TPS status.

Automatic Extension of Employment Authorization and other TPS Related Documents

Under the notice, TPS Employment Authorization Documents (EADs) for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will be automatically extended through January 4, 2021, provided they meet certain registration and documentary requirements set forth in the Federal Register notice.  A beneficiary from any of these countries who has applied for a new EAD under a prior extension, but who has not yet received the EAD, will be covered by the latest extension. 

Similarly, Forms I-94 and I-797 will also be extended through January 4, 2021, provided that the TPS beneficiary properly filed for re-registration during either the most recent DHS-announced registration period for his or her country, or any applicable previous DHS-announced registration period of his or her country, or has a re-registration application that remains pending. A TPS beneficiary whose applications has been withdrawn or denied is not eligible for automatic extensions. 

DHS may announce periodic re-registration periods in the future as litigation continues. 

Possible future outcomes for TPS designations

The government has appealed both the Ramos and Saget preliminary injunctions. If a court ultimately permits DHS to move forward with the TPS terminations, TPS status and work authorization will terminate no earlier than:

• 120 days from the decision for beneficiaries from Haiti, Honduras, Nepal, Nicaragua and Sudan.
• 365 days from the decision for beneficiaries from El Salvador, per the bilateral agreement made between the United States and El Salvador. 

Impact on employers and foreign nationals

I-9 employment eligibility verification: TPS beneficiaries eligible for automatic EAD extensions may complete or update their I-9 employment eligibility records by providing an employer with a copy of the Federal Register notice, an eligible expiring or expired TPS EAD, and any other required I-9 documents. The Federal Register notice provides specific instructions on proper completion of an I-9 form to reflect an automatically extended TPS EAD.

New EADs: While it is not necessary for TPS beneficiaries from the six countries to obtain a new EAD in order to benefit from the automatic EAD extension, they may do so by filing a Form I-765 (Application for Employment Authorization) with USCIS, along with the filing fee (or fee waiver request). 

Pending TPS and/or EAD applications: If a pending application is approved, approval notices and document expiration dates will reflect the latest expiration date of January 4, 2021. There is no need for a foreign national to file either application again in order to benefit from today’s extension.

Fragomen will continue to provide updates on TPS designations and related developments.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.