TPS Developments: Automatic Extensions in Connection with Pending Litigation
As required by court order, the Department of Homeland Security, or DHS, has again extended protections for Temporary Protected Status holders from El Salvador, Honduras, Nepal, Nicaragua, Sudan and Haiti, despite previous DHS decisions to terminate TPS designations for each of these countries. Eligible TPS holders will receive an automatic extension of their status and work authorization.
New Federal Register Notice Automatically Extends TPS and Work Authorization
DHS published a Federal Register Notice, or FRN, on Nov. 4, 2019, automatically extending TPS and work authorization for TPS holders from El Salvador, Honduras, Nepal, Nicaragua, Sudan and Haiti through Jan. 4, 2021. This is the fourth FRN issued in compliance with court orders in Ramos v. Nielsen and related cases that temporarily halted TPS terminations for these six countries. Automatic extensions of TPS and work authorization will continue to be issued in short-term increments for as long as the Ramos injunction remains in place (or, for Haitians, either the Ramos injunction or the injunction issued in the Saget v. Trump case remains in place). A more detailed summary of the current litigation is available here.
Eligible TPS holders who previously re-registered during either the most recent designation period for their country or any applicable previous re-registration period do not need to file an application or pay any fees to receive the automatic extension of TPS and work authorization.
TPS holders may demonstrate work authorization to their employers by showing a copy of the recent FRN along with their auto-extended Employment Authorization Document, or EAD. For other federal, state and local benefits, such as driver’s licenses, check with the applicable government agency to confirm which documentation will be accepted to prove status. Examples include a copy of the FRN and the automatically extended EAD, Form I-94 or Form I-797.
Those who wish to receive a facially valid EAD with an expiration of Jan. 4, 2021, must apply by filing form I-765 and either paying the fee or applying for a fee waiver.
Pending Forms I-821 and/or I-765
Those who have a TPS application (Form I-821) and/or EAD application (Form I-765) still pending as of the following dates should not apply for a new EAD:
El Salvador, Haiti, Nicaragua or Sudan: Jan. 2, 2020
Honduras: Jan. 5, 2020
Nepal: March 24, 2020
If the pending application is approved, documents with a Jan. 4, 2021, expiration date will be issued.
One-Year Extension for El Salvador
A separate agreement between the United States and El Salvador was announced on Oct. 28, 2019. This agreement allows Salvadoran TPS holders additional time to repatriate if litigation resolves in favor of the U.S. government. The FRN clarifies that Salvadorans may live and work in the U.S. for one year following any decision reversing the Ramos injunction. For all other countries, TPS holders would be allowed to live and work in the U.S. for at least six months after the injunction is lifted.
Late Re-Registration May Help Certain TPS Clients Qualify for Automatic Extension of TPS and Work Authorization
TPS holders from the affected countries qualify for automatic extension as long as they properly re-registered for TPS during the most recent re-registration periods for their country or any applicable previous registration period as specified in the FRN at Footnote 1. Those who failed to re-register timely may still benefit from the automatic extension after filing a succesful late re-registration application. Under INA § 244(c)(3)(C) and 8 CFR § 244.17, U.S. Citizenship and Immigration Services has the discretion to accept and approve a late re-registration application when the applicant has “good cause” for filing after the end of the relevant re-registration period. To learn more about what might constitute good cause, what to include in the application, and the potential risks of applying late, see CLINIC’s FAQ on late re-registration for TPS, available here.