United States: Supreme Court Permits DHS to Move Forward with Termination of 2023 Venezuela TPS Designation

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 were challenged in several lawsuits, including the instant case. On March 31, a federal judge in the Northern District of California granted plaintiffs’ motion to stay termination of the 2023 designation. The district court case is National TPS Alliance v. Noem, Case No. 3:25-cv-01766 (N.D. Ca., filed Feb. 19, 2025). The government appealed the decision to the Ninth Circuit Court of Appeals and sought an emergency stay of the district court order from the U.S. Supreme Court. The Supreme Court ruled on that request today.

TPS will remain valid for current beneficiaries of the 2021 Venezuela TPS designation through September 10, 2025. A decision on whether to extend the 2021 designation must be made by DHS by July 12, 2025. If DHS decides to terminate the designation by that date, the termination cannot take effect earlier than 60 days after the termination notice is published (and not earlier than September 10). According to DHS, if a determination is not made by that date, a six-month extension of the designation would apply.

DHS has also stated that for any 2021 Venezuela TPS registrants who chose to register under the 2023 designation – as they were permitted to do under the now-vacated Venezuela TPS extension notice – the agency will restore their 2021 designation, and they will be subject to the 2021 designation validity dates.

As we await USCIS guidance, employers should contact their Fragomen professional or the firm’s Government Strategies and Compliance Group for counsel on the I-9 process for affected foreign nationals. As previously noted, it is likely that employers will need to again move forward to reverify the employment eligibility of Venezuelan TPS beneficiaries of the 2023 designation.