Nov. 4: USCIS Publishes an FRN Automatically Extending TPS for Terminated Countries Under Litigation
On Oct. 3, 2018, a preliminary injunction was issued in the Ramos v. Nielsen case, temporarily halting the U.S. Department of Homeland Security’s, or DHS, termination of Temporary Protected Status, or TPS, for Sudan, Nicaragua, Haiti and El Salvador. On March 12, 2019, the district court in Bhattarai v. Nielsen issued an order halting the termination of TPS for Honduras and Nepal. On April 11, 2019, a court issued another injunction preventing the termination of TPS for Haiti in Saget v. Trump.
DHS published the first steps of its plan for compliance with the Ramos injunction in a Federal Register Notice, or FRN, on Oct. 31, 2018. More recently, DHS published extensions to comply with the Ramos injunction on March 1, 2019, and the Bhattarai order on May 10, 2019. On November 4, 2019, DHS published automatic extensions of TPS and work authorization for Sudan, Nicaragua, Haiti, El Salvador, Honduras and Nepal for eligible TPS holders through Jan. 4, 2021, as required by court order. As long as the preliminary injunctions remain in effect, DHS will continue to issue notices that automatically extend TPS and TPS-related documents for these six countries.
Analysis of the Nov. 4, 2019, Federal Register Notice:
- Under this FRN, eligible TPS holders from El Salvador, Haiti, Nicaragua, Sudan, Nepal and Honduras covered by the Ramos preliminary injunction and Bhattarai order receive an automatic extension of TPS, work authorization and other TPS-related documents through Jan. 4, 2021, as long as the preliminary injunction remains in place.
- These extensions apply only if the TPS holders properly filed for re-registration during either the most recent DHS-announced re-registration period for their country, or any applicable previous DHS-announced re-registration periods for their country, or have a re-registration application that remains pending.
- This automatic extension applies to eligible TPS holders from these countries provided an individual’s TPS is not withdrawn under INA section 224(c)(3) or 8 CFR 244.14 because of ineligibility.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 extension of TPS and related documents through Jan. 4, 2021.
- Eligible TPS holders do not need to apply for a new Employment Authorization Document, or EAD, in order to receive the automatic extension through Jan. 4, 2021.
- If eligible TPS holders wish to receive a new EAD with an expiration of Jan. 4, 2021, 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-based EAD processing times have been severely delayed.
- If TPS holders have a TPS application (Form I-821) and/or EAD (Form I-765) pending as of Jan. 2, 2020, for El Salvador, Haiti, Nicaragua, or Sudan; Jan. 5, 2020, for Honduras; or March 24, 2020, for Nepal, then they should not apply for a new EAD. If the pending application is approved, the issued EAD will be valid through Jan. 4, 2021.
Future Action and Federal Register Notices Related to This Announcement:
- TPS for Sudan, Nicaragua, Haiti, El Salvador, Honduras and Nepal will remain in effect so long as the Ramos, Saget, and Bhattarai orders are in place. The preliminary injunctions in these cases are being challenged by the government on appeal.
- If the litigation is ongoing at the end of the current automatic extension (through Jan. 4, 2021), DHS will issue another automatic extension.
- In the event the preliminary injunctions/orders are lifted and DHS is permitted to terminate TPS for the six countries, terminations would go into effect:
- Nicaragua and Sudan: Approximately 6 months after DHS is permitted to terminate (120 days from the issuance of an appellate mandate, which will take 52 days following decision)
- Honduras and Nepal: Approximately 6 months after DHS is permitted to terminate (180 days after the stay in Bhattarai is lifted)
- Haiti: Approximately 6 months after DHS is permitted to terminate (120 days from the issuance of an appellate mandate, which will take 52 days following decision) should the government prevail in both Ramos and Saget.
- El Salvador: 365 days after DHS is permitted to terminate (following the issuance of an appellate mandate given the recent bilateral agreement with the government of El Salvador)
Impact of other TPS litigation:
- TPS holders and legal practitioners should be advised and aware that outcomes from other TPS cases could impact TPS holders (for example, if additional preliminary injunctions are put in place halting the termination of TPS for a specific country).
Three Recommended Outreach Steps to Take Now: