United States: Federal District Court Orders Postponement of the Termination of 2023 Venezuela TPS Designation
April 1, 2025
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At a glance
- The court order postpones until further notice DHS Secretary Kristi Noem’s decision to terminate a 2023 designation of Temporary Protected Status for Venezuelan nationals, which was set to expire imminently.
- This means that eligible Venezuelan nationals who received TPS benefits under the 2023 designation will receive an automatic extension of employment authorization through April 2, 2026, pursuant to a TPS extension granted during the final days of the Biden Administration.
- Employers will need to verify the employment authorization of affected Venezuelan TPS beneficiaries in order for them to begin or continue employment after April 2, 2025.
The issue
Late Monday, a federal judge in the Northern District of California granted plaintiffs’ motion to postpone Homeland Security Secretary Kristi Noem’s decision to vacate a January 2025 extension of the 2023 Venezuela Temporary Protected Status (TPS) designation and her later decision to terminate the designation. The judge’s order is nationwide in scope. The case is National TPS Alliance v. Noem, Case No. 3:25-cv-01766 (N.D. Ca., filed Feb. 19, 2025).
The court order means that individuals covered by the 2023 TPS designation for Venezuela – whose TPS benefits were set to terminate on April 7, 2025 under Secretary Noem’s direction – will retain their employment authorization and other TPS benefits while the lawsuit proceeds, pursuant to a now-revived TPS extension granted by former DHS Secretary Alejandro Mayorkas on January 17 of this year.
The government has appealed the decision to the Ninth Circuit Court of Appeals and is seeking a stay of the court order.
Background
On January 17, 2025, then-DHS Secretary Mayorkas extended Temporary Protected Status (TPS) for Venezuela for 18 months, from April 3, 2025 to October 2, 2026. Secretary Mayorkas’s extension applied to two prior designations of TPS for Venezuela – one issued in 2021 and a second issued in 2023. TPS beneficiaries were required to re-register with DHS between January 17 and September 10, 2025 in order to obtain extended benefits. They also benefited from an automatic extension of employment authorization through April 2, 2026.
On January 28, new DHS Secretary Noem announced that she was vacating Secretary Mayorkas’s extension. The vacatur meant that TPS for Venezuela would revert to its prior expiration dates of April 2, 2025 (for the 2023 designation) and September 10, 2025 (for the 2021 designation), while Secretary Noem decided whether to extend protections in her own right. Shortly thereafter, the Secretary made the decision not to further extend the 2023 designation. She specified April 7, 2025 as the date that TPS benefits granted under the 2023 designation would expire; she also stated that employers would be required to reverify the employment authorization of affected employees by April 7, 2025. As to the 2021 designation, the Secretary announced that she would decide by July 2025 whether to extend benefits or allow them to lapse. DHS also suspended the adjudication of TPS re-registrations for Venezuela.
Secretary Noem’s TPS vacatur and termination are being challenged in several lawsuits, including the instant case.
Impact of the court’s decision
The court decision means that the 2023 designation and its extension through October 2, 2026 remain in place while the lawsuit proceeds. Beneficiaries under the 2023 designation will also receive an automatic extension of their current EADs through April 2, 2026, discussed further below. Separately, TPS remains valid for current beneficiaries of the 2021 Venezuela TPS designation through September 10, 2025.
However, the government has appealed the decision to the Ninth Circuit Court of Appeals and is seeking a stay of the court order. If a stay is granted, DHS may once again enforce the TPS termination. Fragomen is closely monitoring the case and will provide updates as new details become available.
Do Venezuelan TPS beneficiaries need to register or re-register?
The Mayorkas extension required those eligible for Venezuela TPS benefits to register or re-register with U.S. Citizenship and Immigration Services between January 17 and September 10, 2025. However, after Secretary Noem vacated the extension, USCIS suspended intake of registrations and returned pending registrations without adjudicating them.
It is not yet clear whether registration will be reopened pursuant to yesterday’s court order. As noted above, the government has appealed the decision to the Ninth Circuit Court of Appeals and is seeking a stay of the court order. If the appeal is successful, the government may continue to refuse Venezuela TPS registrations. If a higher court affirms the court order, however, USCIS may be required to reopen registration; eligible foreign nationals should therefore be prepared for the need to register in the near future.
What employers and foreign nationals should do now: employment eligibility verification after April 2, 2025
For now, the court order restores TPS work authorization pursuant to former Secretary Mayorkas’s extension, but Venezuelan TPS beneficiaries with an expired or soon-to-expire EAD will need to have their employment authorization verified or reverified on Form I-9 in order to begin or continue their employment after April 2, 2025 through the automatic extension period ending April 2, 2026. This will affect Venezuelan TPS beneficiaries with EADs bearing a category code of A-12 or C-19 and an expiration date of April 2, 2025, March 10, 2024, or September 9, 2022.
Employers should contact their Fragomen professional or the firm’s Government Strategies and Compliance Group for detailed instructions on the I-9 process for affected foreign nationals. Employers should also be prepared for the possibility that they will need to further reverify the employment eligibility of Venezuelan TPS beneficiaries if the government obtains a stay of yesterday’s court order and resumes enforcement of the TPS termination.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
