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

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At a glance

• Complying with a federal court order, DHS will preserve the Temporary Protected Status (TPS) designation and work authorization for nationals of Sudan, Nicaragua, El Salvador, and Haiti, while a legal challenge to termination of TPS for these countries continues.
• Initially, TPS and related documentation for Sudan and Nicaragua will be extended through April 2, 2019. TPS for Sudan had been set to expire on November 2, 2018.
• Current TPS expirations for El Salvador and Haiti remain in place for now – September 9, 2019 for El Salvador and July 22, 2019 for Haiti.

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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 Sudan, Nicaragua, El Salvador, and Haiti, all countries previously scheduled by DHS to lose TPS designation over the next year. TPS for Sudan was set to expire within days on November 2, 2018, and Nicaragua in a few months on January 5, 2019.

The notice was published to comply with an early October 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 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. 

The agency is simultaneously appealing the injunction order to a higher court, seeking to fulfill its plan to terminate the TPS designations in the shorter term. In the meantime, key provisions of the DHS plan, effective immediately, are as follows:

Temporary extensions for Sudan and Nicaragua

• TPS Employment Authorization Documents (EADs), Forms I-797 Approval Notices, and Forms I-94 for nationals of Sudan and Nicaragua are automatically extended through April 2, 2019, provided they meet certain registration and documentary requirements set forth in the Federal Register notice.
• USCIS will issue EADs valid through April 2, 2019 to TPS beneficiaries from Sudan and Nicaragua who have applied for an EAD, and have been approved for recent re-registration or who have a pending re-registration application with USCIS.

Haiti and El Salvador expirations remain in place for now

• TPS employment authorization documents for Haiti and El Salvador are unaffected by the new USCIS notice, as these designations are set to expire after April, 2, 2019.
• TPS expiration for El Salvador will remain at September 9, 2019.
• TPS expiration for Haiti will remain at July 22, 2019.

Possible future outcomes for TPS designations

• If by approximately March 3, 2019, DHS remains enjoined from terminating TPS for affected countries, DHS will issue another Federal Register notice extending TPS documentation for an additional nine months.
• 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 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.  TPS for Nepal is set to expire on June 24, 2019 and Honduras on January 5, 2020.

Impact on employers and foreign nationals

I-9 employment eligibility verification:  Sudanese and Nicaraguan 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 Sudanese and Nicaraguan TPS nationals 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 Federal Register’s automatic extension dates.  There is no need for a foreign national to file either application again in order to benefit from the 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.