United States: Supreme Court Again Permits DHS to Terminate 2023 TPS Designation for Venezuela While Litigation Continues

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.

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 and specified April 7, 2025 as the date that 2023 Venezuela TPS benefits would expire.

The Supreme Court issued a May 2025 emergency ruling that meant the 2023 Venezuela TPS designation was deemed terminated as of early April, while litigation continued. However, on September 5, in National TPS Alliance et al. v. Noem et al. (N.D. Cal., No. 3:25-cv-01766), the federal district court granted summary judgment in favor of TPS plaintiffs, finding that DHS’s vacatur and termination of the 2023 TPS designation were unlawful, and setting those actions aside under the Administrative Procedure Act (APA). DHS filed an appeal of that September 5 district court order with the Ninth Circuit Court of Appeals and with the U.S. Supreme Court. The Ninth Circuit denied the government’s request to stay the lower court decision while it continued to hear the appeal on the merits. Today, however, the Supreme Court granted the government’s stay request, permitting DHS to enforce the early April termination date for the 2023 Venezuela TPS designation.

While appeals of the September 5 district court reinstatement decision continue, DHS will be permitted to take enforcement action against former beneficiaries of the 2023 Venezuela TPS designation, including placement of these individuals in removal proceedings. Employers of affected foreign nationals should contact their Fragomen professional or the firm’s Government Strategies and Compliance Group for counsel.

As a reminder, DHS announced that it would not extend the 2021 Venezuela TPS designation that was scheduled to expire on September 10, but would grant a transition period through November 7, 2025 for these beneficiaries.

Fragomen is monitoring developments in all TPS litigation and will issue updates accordingly.