DHS Preserves, Extends TPS Status for Four Countries in Compliance with Court Order

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At a glance

• Complying with a federal court order, DHS will preserve Temporary Protected Status (TPS) for nationals of El Salvador, Haiti, Nicaragua and Sudan, while a legal challenge to termination of TPS for these countries continues.
• The validity of TPS-related documentation for nationals of the four countries will be automatically extended through January 2, 2020. This includes employment authorization documents.

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The situation

Today the Department of Homeland Security (DHS) published a Federal Register notice that temporarily preserves Temporary Protected Status (TPS) designations for nationals of El Salvador, Haiti, Nicaragua and Sudan, all countries previously scheduled by DHS to lose TPS designation. 

The notice was published to comply with an October 2018 preliminary injunction issued against DHS by the U.S. District Court for the Northern District of California in the case Ramos et al. v Nielsen et al.  The injunction, which is currently being challenged in the Ninth Circuit Court of Appeals, required DHS to preserve TPS designations for the enumerated countries pending litigation on the issue of whether DHS acted lawfully in terminating their TPS status. The injunction also required DHS to develop a specific plan detailing how it would continue TPS for the countries beyond their originally planned termination dates. 

Given the ongoing litigation, TPS for the four countries will remain in place until further notice. DHS will not terminate the TPS designations of these countries until there is a final, non-appealable judicial order permitting DHS to do so. If DHS is permitted to proceed with the TPS terminations, it will provide a 120-day notice and transition period.

Extension of EADs and other TPS-related documents

TPS Employment Authorization Documents (EADs), Forms I-797 Approval Notices, and Forms I-94 for nationals of El Salvador, Haiti, Nicaragua and Sudan are automatically extended through January 2, 2020, provided they meet certain registration and documentary requirements set forth in the Federal Register notice.

DHS plans to issue another Federal Register notice approximately 30 days before January 2, 2020 that will either extend TPS-related documentation for an additional nine months from January 2, 2020, or provide appropriate procedures for obtaining renewed TPS documentation for all affected eligible beneficiaries. DHS has stated that it will continue to issue extensions in nine-month intervals so long as the preliminary injunction remains in place.

Possible future outcomes for TPS designations

If a court ultimately permits DHS to move forward with TPS terminations, TPS status and work authorization will terminate either 120 days after the final court order, or on the TPS country’s original termination date, whichever is later. TPS for Sudan and Nicaragua had originally been set to expire on November 2, 2018 and January 5, 2019, respectively. Haiti and El Salvador were set to expire on July 22, 2019 and September 9, 2019.

TPS termination dates for Nepal and Honduras are not affected by the preliminary injunction or today’s Federal Register notice, as the countries are not included in the Ramos case. Nepal remains scheduled to expire on June 24, 2019 and Honduras on January 5, 2020.

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 today’s 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 El Salvador, Haiti, Nicaragua and Sudan 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 January 2, 2020 expiration date. 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.