Dec. 9: USCIS publishes Federal Register Notice automatically extending TPS for El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal through Oct. 4, 2021

Automatic extension:

• TPS and related documentation (Forms I-797 Notice of Approval, Employment Authorization Documents (EADs), and Forms I-94 Arrival/Departure Record) are automatically extended for TPS holders from El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal through Oct. 4, 2021 as long as the TPS holder 1) properly re-registered for TPS during one of the below periods (or has a pending re-registration application) and 2) has a work permit with one of the below expiration dates. This automatic extension does not apply to TPS holders whose status has been withdrawn or denied.

*Additionally, TPS holders with an EAD expiration date of April 2, 2019; Jan. 2, 2020, March 24, 2020; and Jan. 2, 2021 are also covered by the automatic extension.

• Eligible TPS holders do not need to pay a fee or file an application to receive the automatic nine-month extension of TPS-related documents through Oct. 4, 2021.
• TPS holders who did not re-register during one of the above registration periods may still file a late re-registration application if they can demonstrate “good cause.” Learn more here.
• These automatic extensions apply as long as the litigation is ongoing. Please see more below in the “Future Action” section.

Work authorization:

• Eligible TPS holders with an Employment Authorization Document, or EAD, with one of the above expiration dates do not need to apply for a new EAD in order to receive the automatic extension through Oct. 4, 2021. They can present their employer with their last EAD, Notice of Action, and a copy of the Federal Register Notice as proof of continued work authorization.
• If eligible TPS holders do not have an EAD with one of the above-listed expiration dates or wish to receive a new EAD with an expiration of Oct. 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 EAD processing times have been severely delayed.

Future action and Federal Register Notices related to Ramos, Bhattarai, and Saget:

• TPS will remain in effect so long as the Ramos preliminary injunction is in place (as the Bhattarai and Ramos cases are linked). Note, the Ramos injunction is currently on appeal. Specifically, the Ninth Circuit Court of Appeals vacated the injunction on Sept. 13, 2020 but has not yet issued its mandate to the district court to effectuate that ruling so the injunction remains in place. Additionally, the Saget district court’s order prohibiting the termination of TPS for Haiti also remains in effect while the decision is on appeal to the U.S. Court of Appeals for the Second Circuit.
• If the preliminary injunction remains in place at the end of the current automatic extension, DHS will issue another automatic extension for an additional nine months.
• In the event the preliminary injunction is overturned in the Ramos case and DHS is permitted to terminate, the following timelines will apply:
  • Nicaragua, Sudan, Honduras, Nepal: Termination of TPS will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court.
  • El Salvador: Termination of TPS will take effect no earlier than 365 days from the issuance of any appellate mandate to the district court.
  • Haiti: The termination of TPS for Haiti is currently temporarily halted under both Ramos and Saget. If the government is able to win both cases, the termination of TPS for Haiti will take effect no earlier than 120 days from the issuance of the later of the two appellate mandates to the district court.
• NOTE: In the Notice, DHS implies it may require re-registration for countries under Ramos and Bhattarai in a future Federal Register Notice. No re-registration is required at this time and there is no information in this Notice about when that possibility may occur.

Three recommended outreach steps for legal services providers to take now:

1. Immigration legal services providers are encouraged to contact affected TPS holders immediately to advise them of this Notice, assess their eligibility for continued status, and screen for more permanent immigration benefits.
   
   
2. Legal practitioners should conduct outreach regarding the availability of late re-registration. According to DHS’s report to the Court in the Ramos case, which also applies in Bhattarai: “any late re-registration applications for the affected populations will take into account the circumstances related to the termination notices. USCIS adjudicators will give presumptive weight to whether the delay in filing for re-registration was due in whole or in part to the termination notices… If the individual’s claim to have delayed filing for this reason is credible, it will be considered a presumptive factor in favor of a ‘good cause’ finding, but all relevant factors must be considered by the adjudicator.”
   
   Find CLINIC’s late re-registration resource here.
   
   
3. Outreach should be done to combat fraud and the unauthorized practice of immigration law related to DHS’ TPS decisions and the corresponding litigation. Eligible TPS holders should be advised that the extension is automatic (no re-registration or fees needed).

More on TPS litigation: To learn more about all the pending litigation on TPS, please visit this summary.