TPS Developments: New Designations, Recent Settlement, and Buzz About Potential Policies for Ukrainians
U.S. Citizenship and Immigration Services announced several Temporary Protected Status (TPS) updates in recent weeks, including new designations for Sudan, Ukraine and Cameroon, and an extension and redesignation for South Sudan. A settlement in the CARECEN v. Jaddou litigation made it possible for certain TPS recipients with prior removal orders to apply for adjustment of status before USCIS. This article summarizes these and other notable developments.
DHS Publishes Federal Register Notice Regarding TPS for Sudan
On April 19, 2022, the Department of Homeland Security (DHS) published a Federal Register Notice (FRN) detailing the eligibility requirements and registration process for seeking TPS under the new 18-month designation for Sudan. Publication of the FRN officially launched the registration period, which will remain open for the entire 18 months of the designation, through Oct. 19, 2023.
To obtain TPS under this designation, applicants must demonstrate continuous residence in the United States since March 1, 2022 and continuous physical presence in the United States since April 19, 2022, as well as meeting other eligibility criteria. An otherwise eligible individual is barred from TPS if he or she:
- Has been convicted of any felony or two or more misdemeanors committed in the United States;
- Is found inadmissible under applicable grounds in INA § 212(a), including non-waivable criminal and security-related grounds;
- Is subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity; or
- Fails to meet the continuous physical presence and continuous residence in the United States requirements.
See CLINIC’s Frequently Asked Questions: TPS Eligibility and the Application Process for additional details.
Should current Sudan TPS recipients apply under this new designation?
Those who currently hold TPS under the prior Sudan designation are urged to register as initial applicants under the new designation. Sudan’s previous designation, first made in 1997, was extended multiple times before it was terminated on Nov. 2, 2018 under the Trump administration. The termination is being challenged in a lawsuit, Ramos v. Wolf. Due to a court- ordered injunction, current Sudanese TPS recipients have had their status temporarily extended. The latest extension was granted through Dec. 31, 2022, and automatic extensions of TPS protections and work authorization will continue to be issued in short-term increments as long as the Ramos injunction remains in place.
Sudanese who have retained TPS under the automatic extensions should still file an initial application for TPS under the new designation. USCIS states that this will help ensure that individuals maintain TPS even if the injunction is lifted and the prior termination is allowed to take effect.
DHS Publishes Federal Register Notice Announcing Extension and Redesignation of TPS for South Sudan
TPS recipients from South Sudan may now re-register based on a recent extension of the country’s designation. Certain first-time applicants may also qualify for TPS under a redesignation.
DHS extended the existing designation for South Sudan for 18 months, from May 3, 2022 through Nov. 3, 2023. The extension allows currently eligible TPS beneficiaries to retain TPS through Nov. 3, 2023, so long as they otherwise continue to meet the eligibility requirements for TPS. To benefit from the extension, TPS recipients must re-register during a 60-day registration period, which runs from March 3, 2022 through May 2, 2022. The validity of current EADs, which expire on May 2, 2022, has been automatically extended by the FRN for 180 days, through Nov. 1, 2022. Re-registrants who would like an EAD that is facially valid through the entire designation (through Nov. 3, 2023) must apply for a new EAD.
A new 18-month redesignation for South Sudan was also announced in the same FRN. The redesignation allows additional individuals who have been continuously residing in the United States since March 1, 2022, to obtain TPS, if otherwise eligible. The new designation is effective May 3, 2022 and remains in effect through Nov. 3, 2023. Initial applicants must register for TPS between March 3, 2022 through Nov. 3, 2023.
DHS Publishes Federal Register Notice Regarding TPS for Ukraine
DHS published the FRN designating Ukraine for TPS on April 19, 2022. To be eligible, Ukrainian applicants must demonstrate continuous residence in the United States since April 11, 2022 and continuous physical presence in the United States since April 19, 2022. As referenced above, there are also statutory bars to TPS eligibility. The registration period will remain open for the entire 18-month designation period, which ends on Oct. 19, 2023.
See the FRN for detailed instructions on how to how to submit an application for TPS and associated employment authorization.
How to Apply for TPS Under All Designations
All TPS applicants under the new Ukraine, South Sudan and Sudan designations should submit Form I-821 and indicate that they are “initial applicants.” A $50 fee is required and applicants age 14 and over must also submit a biometrics service fee, which is $85. Those who are unable to afford the fee may request a fee waiver by submitting form I-912. Applicants who would like an employment authorization document (EAD) that is valid through the entire designation period should also submit form I-765 with the required fee (or a request for a fee waiver).
See the relevant FRN for detailed instructions on how to submit an application for TPS and associated employment authorization.
Potential Programs for Ukrainian Refugees
The Biden administration also announced that it would accept up to 100,000 Ukrainians fleeing Russian aggression “through the full range of legal pathways, including the U.S. Refugee Admissions Program. In particular, [the administration is] working to expand and develop new programs with a focus on welcoming Ukrainians who have family members in the United States.”
Advocates and lawmakers have urged the administration to create quicker pathways to lawful status for Ukrainians seeking refuge. The existing refugee process takes years, and the humanitarian parole process has a backlog of tens of thousands of Afghan applicants. The White House has recently stated that it is creating an “expedited process” for Ukrainians.
While no details have been announced, reports have indicated that the administration is preparing a new parole program for Ukrainians “… which could start as early as next week, [and] is expected to help people interested in coming to the U.S. and allow them to stay in the country temporarily. According to one administration official, individuals would need to have a sponsorship application filled out on their behalf by someone in the U.S. in order to come to the country. Details of the plan are still being finalized.”
In March, CBP reported detaining more than 5,000 Ukrainian migrants. An increased number of Ukrainians sought entry into the United States through the Southern border, and many have been allowed to enter via humanitarian parole.
TPS and Other Options for Afghans
USCIS announced an 18-month designation of TPS for Afghans on March 16, 2022. DHS has not yet published the FRN that would finalize eligibility requirements and open the application process. Many Afghans who were not evacuated during Operation Allies Refuge remain in danger and have sought humanitarian parole in order to enter the United States and pursue lawful status. The backlog for humanitarian parole remains immense, and many advocates report receiving Requests for Evidence and denials despite the dangerous conditions in Afghanistan. Advocates have urged the creation of a special parole program for Afghans, or in the alternative, broad favorable discretion for granting parole and reducing evidentiary burdens. Thus far, the administration has declined to pursue such a program. Advocates have also called for the creation of an Afghan adjustment act, but no legislation has been introduced.
DHS Announces TPS Designation for Cameroon
On April 15, 2022, DHS announced the 18-month designation of TPS for Cameroon. Eligible individuals must have continuously resided in the United States since April 14, 2022. Further details will be provided in a forthcoming FRN. While they await the announcement of an application process, potentially eligible Cameroonians can begin gathering documentation of continuous residence and continuous physical presence.
CARECEN v. Jaddou Settlement
A settlement has been reached in the lawsuit challenging a USCIS policy that changed long-standing practice and prevented TPS recipients with prior removal orders from adjusting status before USCIS after travel with advance parole. Under the settlement agreement, DHS will create a new prosecutorial discretion policy under which ICE OPLA will generally agree to join motions to reopen and dismiss removal proceedings for certain TPS beneficiaries with prior removal orders who traveled on advance parole and are now otherwise eligible for adjustment of status. This prosecutorial discretion policy will remain in effect until at least Jan. 19, 2025.
To qualify under the settlement, the individual must demonstrate that: they are not an enforcement priority; currently have TPS; have a removal, deportation, exclusion order; have traveled on advance parole since the order was issued; and are otherwise prima facie eligible to file for adjustment of status with USCIS.
ICE OPLA will publish notice on its website with instructions on how to submit requests for joint motions to reopen and dismiss under the settlement. A template request for prosecutorial discretion under the settlement is available here.