On October 31, 2018, the Department of Homeland Security (DHS) announced in the Federal Register that it will continue to honor, at least temporarily, the temporary protected status (TPS) designations for nationals of Sudan, Nicaragua, El Salvador, and Haiti. The announcement comes as a result of an order granting preliminary injunction by the U.S. District Court for the Northern District of California in the case Ramos v. Nielsen, which challenges the lawfulness of DHS’s decision to terminate TPS status for the four countries. In order to maintain the “status quo” for TPS beneficiaries, as ordered by U.S. District Court Judge Edward M. Chen, DHS has temporarily extended the validity of TPS-related employment authorization documents for beneficiaries from Sudan and Nicaragua through April 2, 2019.
Background
DHS announced that it was cancelling the TPS designations for each of the four countries beginning with Sudan in November 2018, and continuing through 2019 for Nicaragua (January), Haiti (July), and El Salvador (September). In ordering the preliminary injunction, Judge Chen ruled that “absent injunctive relief, TPS beneficiaries and their children indisputably will suffer irreparable harm and great hardship.” In addition to the injunction, Judge Chen gave DHS 15 days to devise a plan to ensure that the approximately 300,000 TPS beneficiaries maintain their employment authorization and lawful status pending a final resolution of the Ramos case.
Maintaining the Status Quo
Pursuant to Judge Chen’s court order, DHS published a notice in the Federal Register laying out its modified approach to implementing TPS for Sudan, Nicaragua, Haiti, and El Salvador while the preliminary injunction is in effect. Here are the key takeaways of DHS’s plan:
- DHS has automatically extended the validity of TPS-related employment authorization documents (EADs), Forms I-94 (Arrival/Departure Records), and Forms I-797 (Notice of Action [Approval Notice]) for Sudan and Nicaragua through April 2, 2019, if the existing documents meet specific criteria described in the Federal Register.
- Current TPS beneficiaries from Sudan and Nicaragua need not file for an extension in order to maintain their benefits through April 2, 2019, if they properly reregistered for TPS during the latest reregistration period for their country. Individuals who applied for a new EAD but have not yet received it are also covered by the extension if their existing EAD meets the criteria set forth in the Federal Register.
- Those who wish to apply for a new EAD with the April 2, 2019, expiration date may do so, but they must submit a Form I-765 with the appropriate fee. Otherwise, TPS beneficiaries may present their employers with a copy of the Federal Register announcement, together with a copy of their EAD, to show that their TPS-related employment authorization has been automatically extended.
- If the Ramos case is not decided on its merits by March 3, 2019, DHS will issue another Federal Register notice extending TPS-related documentation for another nine months. If that is necessary, the extension would cover TPS beneficiaries from all four countries, including Haiti and El Salvador.
- If, on the other hand, the preliminary junction is reversed and DHS is allowed to proceed with the termination of TPS for the four countries, DHS will provide TPS beneficiaries with a transition period ending the later of either (a) 120 days from the effective date of the order authorizing TPS to terminate or (b) the date TPS was originally scheduled to terminate for that country.
- The termination dates for Haiti and El Salvador are unaffected by the Federal Register announcement. TPS will terminate for Haiti as of July 22, 2019. TPS will terminate for El Salvador as of September 9, 2019.
What’s Next?
Judge Chen has made it a goal to expeditiously decide Ramos on the merits. Until then, his preliminary injunction will remain in effect, temporarily blocking the termination of TPS for nationals of Sudan, Nicaragua, Haiti, and El Salvador. Employers may want to consult the Federal Register announcement for detailed instructions on how to update employment records in light of the automatic extension for employees from Sudan and Nicaragua.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to TPS and will post updates on the Immigration blog as additional information becomes available.
