TPS Developments: Automatic Extensions and Latest Court Orders
Two recent developments will extend protections for TPS holders from Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras, despite decisions by the Department of Homeland Security, or DHS, to terminate TPS designations for each of these countries. Certain TPS holders from the countries above will be eligible for an automatic extension of their TPS status and work authorization. In order to benefit, they must maintain their status through timely re-registration. Those who failed to re-register during the last required period for their country may be able to file a late re-registration application.
New Federal Register Notice Automatically Extends TPS and Work Authorization
DHS published a Federal Register Notice, or FRN, on March 1, 2019, automatically extending TPS and work authorization for TPS holders from Sudan, Nicaragua, Haiti and El Salvador until Jan. 2, 2020. The FRN was issued in compliance with a court order in the Ramos v. Nielsen case, which temporarily halted DHS from terminating TPS for nationals of these four countries. As long as the preliminary injunction remains in place, DHS cannot implement the terminations of TPS for these countries.
Through the FRN, employment authorization documents, EADs, I-797s and I-94s are automatically extended through Jan. 20, 2020. Eligible TPS holders who previously re-registered do not need to pay a fee or file an application to receive the automatic extension. Those who wish to receive a new EAD with an expiration of Jan. 2, 2020 must apply for a new EAD and pay the fee or apply for a fee waiver. If TPS holders have a TPS application, i.e., Form I-821, and/or an EAD application, i.e., Form I-765, pending as of April 2, 2019, then they should not apply for a new EAD. If the pending application is approved, an EAD with a Jan. 2, 2020 expiration date will be issued.
Court Order Temporarily Halts Implementation of TPS Terminations for Nepal and Honduras
On March 12, 2019, a federal district court in California temporarily stayed the terminations of TPS for Nepal and Honduras in the Bhattarai v. Nielsen case. This court order links to the preliminary injunction in the Ramos v. Nielsen case, in which DHS was ordered not to implement termination of TPS for El Salvador, Haiti, Sudan and Nicaragua while the injunction remains in effect. The Bhattarai class action lawsuit—brought by six TPS holders and two U.S. citizen children of TPS recipients in February 2019—challenges the legality of the DHS decisions to terminate TPS for Honduras and Nepal. TPS for Nepal was set to expire on June 24, 2019. TPS for Honduras was set to expire on Jan. 5, 2020.
TPS now temporarily remains in place for all six countries that received termination decisions by the Trump administration: Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras. Automatic extensions of TPS protections and work authorization will be issued in short-term increments as long as the Ramos injunction remains in place.
Based on the plan outlined in the Bhattari order, DHS is expected to issue an FRN to automatically extend TPS and work authorization for current Nepali and Honduran TPS holders 45 days prior to the respective TPS designations’ expiration. For Nepal, the FRN is expected on or before May 10, 2019. For Honduras, the FRN is expected on or before Nov. 21, 2019. Like the extensions associated with the Ramos v. Nielsen case, Nepali and Honduran TPS holders who successfully re-registered during the last registration period would not be required to take action to receive the automatic extension.
Note that the 9-month automatic extensions will only continue for as long as the Ramos preliminary injunction is in place. The injunction is currently under appeal by DHS in the U.S. Court of Appeals for the 9th Circuit, and arguments will be scheduled in the coming months. Several different scenarios could emerge, depending upon how the appeal proceeds in the appellate court. If the preliminary injunction is reversed on appeal and the two cases remain linked, TPS will remain in effect for Nepal and Honduras for a minimum of a) 120 days following the issuance of any mandate to the district court or b) the Secretary’s previously announced effective date for the termination date for each individual country, whichever is later. As long as the Ramos and Bhattarai cases remain linked, the temporary relief provided will continue in the same way for all six countries. If, for some reason, the court should unlink the cases, TPS would remain in effect for Nepal and Honduras for at least 180 days following an order vacating the stay.
Late Re-Registration May Help Certain TPS Clients Qualify for Automatic Extension of TPS and Work Authorization
TPS holders from Sudan, Nicaragua, Haiti and El Salvador qualify for automatic extension of their TPS and work authorization, as long as they properly re-registered for TPS during the most recent re-registration periods for their country. Those dates are specified on the USCIS website. Those who failed to re-register timely may still benefit from the automatic extension after filing a late re-registration. Under INA § 244(c)(3)(C) and 8 CFR § 244.17, the U.S. Citizenship and Immigration Service 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. For more information 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.
More information about the recent FRN and TPS litigation developments can be found at https://cliniclegal.org/tps.