Re-Registering for TPS and Maintaining Employment Authorization
In recent months, the Department of Homeland Security, or DHS, has announced the termination of Temporary Protected Status designations for several countries. Each time TPS is terminated or extended for a designated country, TPS holders from that country are required to re-register if they wish to maintain TPS status. Typically, in addition to re-registering, TPS holders must reapply for Employment Authorization Documents, or EADs, to continue working legally in the United States until their TPS expires. This article describes the basic process for re-registering for TPS. Note that country-specific instructions for TPS re-registration are always published in the Federal Register Notice. Consult the Federal Register Notice and U.S. Citizenship and Immigration Services website for country-specific details about re-registration.
Who May Re-Register for TPS?
Generally, in order to maintain status, a TPS holder must file a re-registration application during a 60-day re-registration period announced by DHS and published in the Federal Register. The applicant must continue to be eligible for TPS as follows: (1) be a national of the designated country or a person without nationality who last habitually resided in the designated country; (2) file during the designated re-registration period (or meet the requirements for late re-registration during any extension of the country’s TPS designation); (3) have been continuously physically present in the United States since the effective date of the country’s most recent TPS designation; and (4) have been continuously residing in the United States since the date specified for the TPS country.
In addition, the applicant must be admissible. Certain grounds of inadmissibility do not apply to TPS applicants and most other grounds can be waived for humanitarian purposes, to assure family unity, or in the public interest. A Form I-601 waiver application is only needed for inadmissibility grounds that were not previously waived. Finally, an applicant cannot have a conviction for one felony or two or more misdemeanors.
When to File for TPS Re-Registration
TPS holders may file for re-registration during the 60-day period announced in the Federal Register Notice, or FRN. Each FRN contains country-specific instructions regarding re-registration and work authorization. We do not recommend filing new applications until a re-registration period is formally announced because applications submitted early may be rejected. However, before the re-registration period is opened TPS recipients may prepare applications and confirm continued eligibility for TPS.
Prior to filing for re-registration, applicants should be screened to ensure continued eligibility for TPS, including continued physical presence and residence, new criminal issues, and other developments that could trigger inadmissibility and the need for a waiver. Ideally, advocates should also review clients’ prior TPS applications for consistency and red flag issues before filing re-registration applications.
Re-registration applications must be submitted using Form I-821. Check to see that you are using the edition required by USCIS. As of this writing, the latest edition is dated 10/19/2017. There is no filing fee for Form I-821, but applicants 14 years old or over must pay the biometrics fee or qualify for a fee waiver.
Late TPS Re-Registration
USCIS may accept a late application filed after the 60-day re-registration period for a particular country has ended. The TPS applicant must submit a statement explaining a good cause reason for filing late along with his or her re-registration application. We recommend providing documentation to support the good cause reason for filing. If the person failed to re-register over a long period of time, consider including evidence of continued residence to demonstrate that the person has maintained eligibility for TPS.
How to Maintain Employment Authorization
TPS holders should always consult the FRN and USCIS website for country-specific details about maintaining employment authorization. When DHS announces an extension or termination of a TPS designation, it may automatically extend the validity of TPS beneficiaries’ EADs for a period of time. However, in most instances, TPS holders are required to file Form I-765 in order to maintain work authorization for the full duration of an extension or delayed termination and to receive a new EAD. Form I-765 may be filed together with the I-821 or sometime later, based on a pending or approved Form I-821. Details about any period of automatic extension and EAD renewal deadlines are included in the FRN and posted on the USCIS website. All TPS applicants applying for an EAD must pay the Form I-765 filing fee or seek a fee waiver. Check the USCIS website to confirm the current fees.
The fee for both biometrics and Form I-765 may be waived. To qualify for a fee waiver, the applicant must clearly demonstrate an inability to pay the fees. The request may be made through writing or, as we recommend, through the filing of Form I-912. Applicants must demonstrate eligibility for a fee waiver based on one or more of the following criteria: (1) receipt of a means-tested benefit; (2) household income that is at or below the Federal Poverty Guidelines; and/or (3) financial hardship. Supporting evidence must be included. The request for a fee waiver must be submitted along with the completed re-registration application and/or I-765. More information about fee waivers is available at www.uscis.gov/i-912.
Pending TPS Applications
In public stakeholder calls on Jan. 25 and Jan. 30, 2018, USCIS clarified that TPS beneficiaries with Form I-821 applications still pending from the previous re-registration period need not re-register. Likewise, if a previously filed Form I-765 is approved, the EAD will be issued with the current extension dates.
While re-registration is pending, those who are prima facie eligible for TPS will be treated as having TPS until a decision is reached on their case.
Travel for TPS Beneficiaries
TPS holders who want to travel outside the United States must first apply for advance parole travel authorization using Form I-131. It may be filed together with the I-821 or separately based on a pending or approved I-821. Before deciding to depart the country, TPS recipients should seek legal advice about the risks of traveling with advance parole as well as the potential of creating adjustment of status eligibility based on being paroled back into the U.S.
Eligibility for Late Initial Registration
Some individuals who have not previously filed for TPS status may be eligible for late initial registration. This may be an option if certain conditions prevented the person from seeking TPS during the initial designation period for their country. First-time registration applications may be submitted during an extension of a country’s TPS designation period. In addition to meeting all other TPS eligibility requirements, the applicant must satisfy at least one of the following late initial filing conditions and must register while one of these conditions still exists or within 60 days of the condition’s expiration or termination: (1) the applicant was a nonimmigrant or was granted voluntary departure status or any relief from removal during the initial registration period (or during a subsequent initial registration period if the country was re-designated); (2) the person had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal that was pending or subject to further review or appeal during the registration period; (3) the individual was a parolee or had a pending request for re-parole during that timeframe; or (4) the applicant is the spouse or child of an individual currently eligible for TPS. Note that there is no derivative status for TPS beneficiaries. Spouses and children must independently meet the TPS eligibility requirements and their relationship to the TPS eligible person must have existed at the time of the initial registration. Note that a “child” does not age out for purposes of late initial registration. In other words, someone who was the child at the time of a parent’s initial registration may still be eligible now even if he or she is now over 21 years old or married.