The Trump Administration is Forced to Extend TPS status for Six Countries
The Department of Homeland Security (DHS) announced Friday, the 1st of
November, 2019, that Temporary Protected Status (TPS) for immigrants from
six countries would be extended, protecting them from the possibility of
getting deported. TPS status for people that originally from Nicaragüa, Haiti,
El Salvador, Honduras, Nepal, and Sudan has been extended to Jan. 2021.
DHS is extending TPS in compliance with the preliminary injunctions of the
U.S. District Court for the Northern District of California in Ramos, et al. v.
Nielsen, et. al. and the U.S. District Court for the Eastern District of New York
in Saget, et. al., v. Trump, et. al., and with the order of the U.S. District Court
for the Northern District of California to stay proceedings in Bhattarai v.
In October 2018, TPS holders from Sudan, Nicaragüa, Haiti, and El Salvador,
won a preliminary injunction, requiring the Trump administration to extend
their immigration protections and work authorizations while the case is
The one-year extension was announced days after President Donald Trump,
and his administration announces that it would extend work permits for more
than 250,000 Salvadorians as part of a deal with El Salvador agreed to work
with U.S. immigration authorities to reduce the number of people who pass
through on their way to the U.S.-Mexico border.
DHS is automictically extending the validity of TPS-related documentation for
beneficiaries under the TPS designation for El Salvador, Haiti, Honduras,
Nepal, Nicaragüa, and Sudan. TPS-related documentation will remain in effect
through the 4th of January, 2021, from the current expiration date of the 2nd
of January, 2020, for beneficiaries under TPS designation for El Salvador,
Haiti, Nicaragüa and Sudan; the 5th of January, 2020 for the beneficiaries the
TPS designation for Honduras, and the 24th of March, 2020 for beneficiaries
under the TPS designation for Nepal.
TPS holders from El Salvador, Haiti, Honduras, Nepal, Nicaragüa, and Sudan
who have employment authorization cards may show their employers their
current cards, and the Federal Register Notice to show that they are still
legally able to work.
Some may ask about the extension of Forms I-94 and Forms I-797. Both
Forms will get an automatic extension, in which the extension only applies if
The TPS beneficiary properly filed for re-registration during either the most
recent DHS-announced registration for their country or any applicable
previous DHS-announced re-registration periods for his or her country.
Current beneficiaries under TPS designation for El Salvador, Haiti, Honduras,
Nepal, Nicaragüa and Sudan do not need to pay a fee or file any application,
including application for Employment Authorization Form I-765, to maintain
that their TPS benefits through the 4th of January, 2021, provided that they
have properly re-registered for TPS during either the most recent DHS-
announced registration period for their country.
TPS beneficiaries who have failed to re-register properly for TPS during any of
those re-registration periods may still file an Application for Temporary
Protected Status (Form I-821) but must demonstrate “good cause” for failing
to re-register on time, as required by law.
During the TPS designation period, TPS beneficiaries are eligible to remain in
the United States, may not be removed, and are authorized to obtain
Employment Authorization Documents (EADs) so long as they continue to
meet the requirements of TPS.
When the Secretary of Homeland Security (the Secretary) terminates a
country’s TPS designation, beneficiaries return to one of the following: The
same immigration that they maintained before TPS, if any ( unless that status
or category has since expired or terminated); or Any other lawfully obtained
immigration status or category they received while registered for TPS, as long
as it is still valid on the date TPS terminated.
The Government has appealed both the Ramos and Saget preliminary
injunction. Should the Government prevail in its challenge to the Ramos
preliminary injunction, the Secretary’s determination to terminate TPS for El
Salvador, Haiti, Honduras, Nepal, Nicaragüa, and Sudan will take effect no
earlier than 120 days from the issuance of any appellate mandate to the
district court. The Secretary determination to terminate TPS for El Salvador
will take effect no earlier than 365 days from the issuance for any appellate
mandate to the Ramos district court. DHS provides this additional time for El
Salvador TPS beneficiaries in part because there are almost 100,000 more
such beneficiaries in the combined TPS beneficiaries population of all the
other five countries covered by this notice.
The basis of the legal challenges is that the Department of Homeland
Security’s decisions to terminate TPS stemmed from racial discrimination,
violated required Immigration and Nationality Act (INA) and Administrative
Procedures Act (APA) procedures, and overstepped the Constitutional rights
of TPS beneficiaries. The APA constrains an agency’s ability to change its
practices or policies without acknowledging the change or providing an
explanation. The agency must also show that there are good reasons for the
new policy. In the past, DHS looked not only at originating conditions but also
in the current conditions of the countries. DHS is now basing its TPS decision
solely on whether the originating conditions directly related there to persisted,
regardless of other current conditions no matter how bad, and that this was a
clear departure from prior administration practice. The Government has
offered no explanation or justification for this change.
In its preliminary injunction, the court found that the plaintiffs have provided
sufficient evidence to raise serious questions as to whether a discriminatory
purpose was a motivating factor in the decisions to terminate the TPS
designations. Specifically, the Plaintiffs have provided evidence indicating that
(1) the DHS Acting Secretary or Secretary was influenced by President Trump
and the White House in her TPS decision-making and (2) President Trump
has expressed ill will against non-white, non-European immigrants. Plaintiffs
have also pointed to several pieces of evidence suggesting that the White
House was putting pressure on DHS to end TPS. As Plaintiffs have cataloged,
there is evidence of such as reflected by statements made by President Trump
before, during, and after the TPS decision-making process.
In June 2015, Mr. Trump announced that he was running for President and
delivered remarks characterizing Mexican immigrants as drug dealers or
users, criminals, and rapists. In June 2017, President Trump stated that
“15,000 recent immigrants from Haiti ‘all have AIDS’ and that 40,000
Nigerians, once seeing the United States, would never ‘go back to their huts’ in
Africa.” On the 11th of January, 2018, during a meeting with lawmakers where
immigrants from Haiti, El Salvador, and African countries were discussed,
including concerning TPS designations that had been terminated, President
Trump asked: “Why are we having all these people from shithole countries
come here?’ He then suggested that the United States should instead bring
more people from countries such as Norway,” which has a predominantly
white population. He also told lawmakers that immigrants from Haiti “must
be left out of any deal.”
Temporary Protected Status (TPS) is awarded to nationals of a country that
the United States deems it would be inhumane to send them back to their
home country. This may be due to civil unrest, a natural disaster, or other
extreme situations. Immigrants with TPS status may stay in the U.S. legally as
long as they do not have a criminal record of more than two misdemeanors.
About 437,000 people in the U.S. currently have TPS, but they don’t
automatically get a green card or citizenship; however, they cannot be
deported from the U.S.
In the event the preliminary injunction is reversed. That reversal becomes
final, DHS will allow for an orderly transition period, ending on the later of (a)
120 days from the effective date of such a superseding, final order, or (b) on
the Secretary’s previously announced effective date for the termination of TPS
designations for each country. DHS will issue another Federal Register notice
approximately 30 days before the 4th of January, 2021, that will either extend
TPS-Related documentation for an additional nine months from the 4th of
January, 2021, or provide appropriate procedures for obtaining renewed TPS
documentation for all affected eligible beneficiaries under the TPS
designations for Sudan, Nicaragua, Haiti, and El Salvador. DHS will continue
to issue Federal Register notices at nine-month intervals so long as the
preliminary injunction remains in place and will continue its commitment to a
120-orderly transition period.