May 10: USCIS publishes Federal Register Notice automatically extending TPS for Nepal due to court order
 

On March 12, 2019 a court order was issued in the Bhattarai v. Nielsen case temporarily halting the Department of Homeland Security’s, or DHS, termination of Temporary Protected Status, or TPS, for Nepal and Honduras. The Bhattarai case is linked to the Ramos v. Nielsen case, which covers Sudan, Nicaragua, El Salvador, and Haiti, and is currently under preliminary injunction.
 

DHS published the first steps of its plan for compliance with the Bhattarai injunction in the Federal Register on May 10, 2019. This notice automatically extends TPS and related documents for eligible Nepali TPS holders.

 

The Bhattarai case also covers TPS for Honduras. DHS is expected to provide more information regarding Honduran TPS holders in Nov. 2019, approximately 45 days before Jan. 5, 2020, when TPS for Honduras had been set to terminate (and when current Honduran TPS documents will expire).

 

Analysis of the May 10, 2019 Federal Register Notice:
 

Eligible Nepali TPS holders covered by the Bhattarai court order receive an automatic extension of TPS-related documents until March 24, 2020, as long as the preliminary injunction remains in place.
 

• TPS and related documentation (Forms I-797 Notice of Approval, Employment Authorization Documents (EAD), and Forms I-94 Arrival/Departure Record) are automatically extended for eligible Nepali TPS holders through March 24, 2020, provided they properly re-registered for TPS during one of the two most recent re-registration periods for Nepal or they have a pending application:

 

 

 

Designation period	Re-registration dates
18-month extension: Dec. 25, 2016 – June 24, 2018	October 26, 2016 -- December 27, 2016
12-month termination: June 25, 2018 – June 24, 2019	May 22, 2018 -- July 23, 2018

 

 

• This automatic extension only applies to eligible Nepali TPS holders whose status is not withdrawn under INA section 224(c)(3) or 8 CFR 244.14 because of ineligibility.
• Eligible TPS holders do not need to pay a fee or file an application to receive the automatic nine-month extension of TPS-related documents through March 24, 2020.
• Nepali TPS holders who only registered for TPS during the first designation period and did not re-register during the two more recent re-registration periods may still file a late re-registration application if they can demonstrate “good cause.” Learn more here.

 

Work authorization:
 

• Eligible TPS holders will not need to apply for a new EAD in order to receive the automatic extension through March 24, 2020. They can present their employer an EAD with an expiration date of 06/24/2018 or 06/24/2019 and a copy of the May 10, 2019 Federal Register Notice as proof of continued work authorization.  
• If eligible TPS holders wish to receive a new EAD with an expiration of March 24, 2020 on its face, they must apply for a new EAD (Form I-765) and pay the fee or apply for a fee waiver. In making this decision, TPS holders should note that TPS EAD processing times have been severely delayed.
• If TPS holders have a pending TPS application (Form I-821) and/or EAD (Form I-765) they should not apply for a new EAD. If and when the pending application is approved, an EAD with a March 24, 2020 expiration date will be issued.
   

Future action and Federal Register Notices related to Bhattarai:
 

• TPS for Nepal and Honduras will remain in effect so long as the Ramos preliminary injunction is in place (as the Bhattarai and Ramos cases are linked). Note, the Ramos injunction is currently being challenged by the government in an appeals court.
• If the preliminary injunction remains in place at the end of the current automatic extension for Nepal (through March 24, 2020), DHS will issue another automatic extension for an additional nine months. The same nine-month extensions will also be applied to Honduras.
• In the event the preliminary injunction is overturned in the Ramos case and DHS is permitted to terminate TPS for Nepal and Honduras, TPS will remain in effect for 1) a minimum of 120 days after the court order permitting termination or 2) on the previously announced termination date (not applicable for Nepal), whichever date is later.
• If the appellate court reviewing the Ramos preliminary injunction finds that the Nepal and Honduras terminations should be treated separately from the countries at issue in Ramos (El Salvador, Haiti, Sudan, Nicaragua) and DHS is permitted to enforce the TPS terminations for Nepal and Honduras, TPS will remain in effect for at least 180 days following that court order.
   

 

 

Three recommended outreach steps to take now:   Immigration legal services providers are encouraged to contact Nepali TPS holders immediately to advise them of this Notice, assess their eligibility for continued status, and screen for more permanent immigration benefits.   Legal practitioners should conduct outreach regarding the availability of late re-registration. According to DHS’s report to the Court in the Ramos case, which also applies in Bhattarai: “any late re-registration applications for the affected populations will take into account the circumstances related to the termination notices. USCIS adjudicators will give presumptive weight to whether the delay in filing for re-registration was due in whole or in part to the termination notices… If the individual’s claim to have delayed filing for this reason is credible, it will be considered a presumptive factor in favor of a ‘good cause’ finding, but all relevant factors must be considered by the adjudicator.” Find CLINIC’s late re-registration resource here.   Outreach should be done to combat fraud and the unauthorized practice of immigration law related to DHS’s TPS decisions and the corresponding litigation. Eligible Nepali TPS holders should be advised that the extension is automatic (no re-registration or fees needed).