The Department of Homeland Security (DHS) will continue to preserve Temporary Protected Status (TPS) designations for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan given that the Ninth Circuit Court of Appeals has not yet issued a directive that would allow the federal government to move forward with the termination of TPS for these countries. According to a Federal Register notice to be published on September 10, 2021, TPS status and employment authorization documentation for beneficiaries from these countries will be extended through December 31, 2022. They had been set to expire on October 4, 2021.
Automatic extension of employment authorization and other TPS-related documents
Under the Federal Register notice, TPS Employment Authorization Documents (EADs) for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will be automatically extended through December 31, 2022, provided they meet certain registration and documentary requirements set forth in the Federal Register notice. A beneficiary from any of these countries who has applied for a new EAD under a prior extension, but who has not yet received the EAD, will be covered by the latest extension.
Similarly, Forms I-94 and I-797 will also be extended through December 31, 2022, provided that the TPS beneficiary properly filed for re-registration during either the most recent DHS-announced registration period for his or her country, or any applicable previous registration, or has a re-registration application that remains pending. A TPS beneficiary whose application has been withdrawn or denied is not eligible for automatic extensions.
Impact on status and work authorization
The notice also states the following regarding TPS-related documentation:
I-9 employment eligibility verification: TPS beneficiaries eligible for automatic EAD extensions may complete or update their I-9 employment eligibility records by providing an employer with a copy of the Federal Register notice, an eligible expiring or expired TPS EAD, and any other required I-9 documents. The Federal Register notice provides specific instructions on proper completion of an I-9 form to reflect an automatically extended TPS EAD.
New EADs: While it is not necessary for TPS beneficiaries from the six countries to obtain a new EAD in order to benefit from the automatic EAD extension, they may do so by filing a Form I-765 (Application for Employment Authorization) with USCIS, along with the filing fee (or fee waiver request).
Pending TPS and/or EAD applications: If a pending application is approved, approval notices and document expiration dates will reflect the latest expiration date of December 31, 2022. There is no need for a foreign national to file either application again in order to benefit from the extension.
DHS may announce periodic re-registration periods in the future as litigation continues or as the Ninth Circuit issues directives.
On September 14, 2020, the Ninth Circuit Court of Appeals in Ramos v. Wolf ruled that the Department of Homeland Security may proceed with its long-planned termination of TPS designations for El Salvador, Haiti, Nicaragua and Sudan, vacating a lower court decision that had blocked the terminations while litigation continues. That decision also affected the TPS designations for Nepal and Honduras, as required by court order in a separate California district court case.
To date, however, the Ninth Circuit has not yet issued a directive to implement its September 14 order. The appeals court has refrained from doing so while plaintiffs seek a rehearing en banc. As such, DHS must continue to extend TPS status and work documentation for the affected countries pursuant to the lower court injunction.
Should the Ninth Circuit issue a directive to implement its September 14 decision permitting TPS termination, TPS benefits would terminate according to specific timelines for each country, none less than 120 days from the date of the directive. The TPS designation for Haiti, though included in the Ramos case, is also protected from termination under a separate injunction issued by a New York federal district court; benefits under that designation would only terminate if the New York injunction were also reversed.
TPS for Haiti
Recently and separately, DHS also issued a new designation for Haiti TPS effective from August 3, 2021 through February 3, 2023, based on current conditions in the country. Registration under the new designation is highly encouraged by DHS for those eligible – including for those currently holding Haiti TPS under the prior designation. Registration under the new Haiti designation could protect applicants from adverse court decisions in the pending lawsuits related to the prior designation.
In order to obtain TPS under the new Haiti designation, eligible individuals must apply before the close of the registration period on February 3, 2023.
What’s next for TPS
Prior to taking office, President Biden said that he intended to conduct an immediate review of the TPS programs upon taking office with the goal of preventing TPS beneficiaries from being forced to return to countries that are unsafe. Results of that review may have led to the new Haiti designation. Its impact on the remaining TPS countries is not yet known.