Central American Temporary Protected Status (TPS) Update
Temporary Protected Status (TPS) is designated by the Secretary of Homeland Security based upon a determination that nationals of the designated country cannot safely return to their home country. Usually, a country is designated for TPS after a natural disaster, such as an earthquake, or during an armed conflict, such as the present conflict in Syria. A grant of TPS allows the beneficiary to reside in the United States, to obtain an employment authorization document (EAD), to obtain a travel document (advance parole), and prevents the individual from being deported/removed from the United States or detained by the Department of Homeland Security (DHS) based upon their immigration status.
TPS by its very nature is temporary in nature. The Secretary of DHS can terminate or choose not to renew a designation. At present, three Central American countries are designated for TPS: Nicaragua, Honduras, and El Salvador. I will discuss ongoing developments with the designations for each of these countries in turn.
On 6 November 2017, the acting Secretary of DHS, Elaine Duke, announced that she would terminate the TPS designation for Nicaragua. The Secretary stated that she would delay the effective date of the termination of TPS for Nicaragua for twelve (12) months. The designation will terminate on 5 January 2019. Currently, TPS for Nicaragua is designated through 5 January 2018. Per the Secretary’s announcement, TPS beneficiaries from Nicaragua will likely have to re-register in 2018 to extend their employment authorization (EAD) through the termination date. By 5 January 2019, Nicaraguans with TPS need to depart the United States or find an alternative means to continue residing in the United States legally.
On 6 November 2017, the acting Secretary for DHS determined that she did not have sufficient information to make a decision regarding the termination of TPS for Honduras. As a result, the designation of TPS for Honduras was automatically extended for six months, or through 5 July 2018. The Secretary indicated in her announcement that she might end the designation for Honduras at the end of the extension “with an appropriate delay”. In other words, assuming DHS terminates the designation for Honduras and the delay for Nicaragua is equally applied to Honduras, TPS for Hondurans would likely end on 5 July 2019.
The Secretary of DHS has not made a determination as to the extension or termination of TPS for El Salvador at this time. At present, El Salvador has TPS extended through 9 March 2018. DHS must decide to terminate or renew TPS for El Salvador by approximately 9 January 2018 (60 days prior to the designation end date).
Nicaraguans, Hondurans, and El Salvadorians with TPS need to start considering their plan now as once the designation ends for their respective countries, they will be without status and subject to deportation/removal from the United States. The best option is to apply for adjustment of status (a green card). INA § 245(a) requires an “admission or parole” in order to be eligible for adjustment of status. TPS recipients who entered the United States with a visa may be eligible to adjust status via a family or employer petition. It is worth noting that only petitions by immediate relatives (US citizen spouse, US citizen child over 21 for parent, or US citizen parent for child under 21) will waive any unlawful presence. For example, a petition by a sibling would require a separate waiver application for unlawful presence. Similarly, for an employment petition or other change of status application that is employment-based, the applicant must have maintained continuous lawful non-immigrant status. Even if a TPS recipient entered without inspection (without a visa), they may be eligible to adjust status if a family member or employer filed an approvable petition on their behalf prior to 30 April 2001 pursuant to INA § 245(i).
A TPS beneficiary who entered without inspection and is not eligible under INA § 245(i) has less options. It bears noting that the U.S. Courts of Appeal for the Ninth Circuit and the Sixth Circuit have held that a grant of TPS is an “admission” for the purpose of adjustment of status while the beneficiary has a valid grant of TPS. See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). No such holding exists in the Fifth Circuit, the circuit in which Texas sits. TPS beneficiaries that live in Texas and entered without inspection may be eligible to adjust status by using TPS advance parole as the “admission or parole” necessary for adjustment under INA § 245(a). Advance parole allows a TPS beneficiary to travel abroad temporarily and return to the United States. Using advance parole as a means of adjusting status is risky because the TPS designations could change or the rules regarding advance parole could change. More importantly, if a TPS beneficiary accrued more than 180 days of unlawful presence, he or she would trigger either the three or ten-year unlawful presence bar upon departing the United States pursuant to INA § 212(a)(9).
In conclusion, TPS will terminate for Nicaragua and may terminate for Honduras and El Salvador as well. Current beneficiaries need to explore alternative avenues for remaining in the United States as soon as possible. Links to the memorandums from DHS on Nicaragua and Honduras appear below.