The Department of Homeland Security (DHS) announced that individuals from six countries with Temporary Protected Status (TPS) can now remain in the United States until Dec. 31, 2022. The extension applies to El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. Work authorizations are also extended.
This announcement is the latest of several TPS extensions for these countries. The TPS designation of these countries was extended to Jan. 4, 2021, and then again to Oct. 4, 2021. The extensions are keeping DHS in compliance with court injunctions.
Basics of TPS
The Immigration Act of 1990 established the Temporary Protected Status (TPS), which allows foreign nationals to stay in the United States when it isn’t safe for them to return home. The Secretary of the Department of Homeland Security (DHS) has the authority to make TPS designations, but certain criteria must be met.
A country can be given TPS status if it is experiencing any of the following:
- Ongoing armed conflict
- An environmental disaster
- Other extraordinary and temporary conditions
Designations are made for a specific amount of time (usually 6, 12, or 18 months), but these designations can be renewed if evidence shows that it is still unsafe for the TPS holder to return to the country.
Some TPS holders have lived in the U.S. for decades, with many starting families here. The United States is the only country these children have known, and these children are U.S. citizens. TPS holders go to school and work and are active members of their community. According to the Center for American Progress, more than 11,000 TPS holders are healthcare workers and more than 130,000 have served the U.S. as essential workers during the COVID pandemic.
The six countries represented in the lawsuits are not the only ones designated for TPS status. Current TPS countries are as follows:
- Burma (Myanmar)
- El Salvador
- South Sudan
Not everyone who lives in TPS countries has the right to live in this country. Criminal and national-security concerns can lead to an individual being denied TPS and admission to the U.S.
Basis for the Recent Extension
The Trump administration’s DHS secretary had announced that the TPS designations would not be extended for several countries, thereby setting in motion dates in which these TPS holders would have to leave the country or face deportation.
The TPS expirations under the Trump administration were as follows:
- El Salvador: Sept. 9, 2019
- Haiti: July 22, 2019
- Honduras: Jan. 5, 2020
- Nepal: June 24, 2019
- Nicaragua: Jan. 5, 2019
- Sudan: Nov. 2, 2018
This announcement put into motion three class-action lawsuits arguing that the TPS termination was unconstitutional because it was motivated by race discrimination. These lawsuits continue to impact the status of these six countries.
The lawsuits filed in response to the expiration announcement include:
- Ramos v. Nielsen. This lawsuit affects 300,000 TPS holders from El Salvador, Haiti, Nicaragua, and Sudan. It was filed in March 2018 with the U.S. District Court for the Northern District of California on behalf of nine people with TPS status and five U.S.-citizen children of TPS holders.
- Saget v. Trump. About 50,000 TPS Haitian holders and their children are impacted by this lawsuit. It was filed in May 2018 in the U.S. District Court for the Eastern District of New York on behalf of 10 TPS holders.
- Bhattarai v. Nielsen. Affecting about 100,000 TPS holders from Honduras and Nepal, this lawsuit was filed in February 2019 with the U.S. District Court for the Northern District of California on behalf of six TPS holders and two U.S.-citizen children.
The two federal district courts involved in the original filings issued preliminary injunctions while the cases are resolved on their merits. The injunction on the Ramos lawsuit was issued on Oct. 3, 2018, and the same judge linked the Bhattarai complaint with the Ramos injunction on March 19, 2019. In the Saget complaint, the judge issued a preliminary injunction on April 11, 2019.
The injunctions put a hold on the terminations taking effect.
The federal government appealed the injunction in the Saget case to the Second Circuit Court of Appeals. The other two injunctions were appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit announced its decision on Sept. 14, 2020, lifting the injunction that barred the termination.
In response, the plaintiffs filed a petition for rehearing en banc. This petition is asking for the entire appellate court, not just the original hearing panel, to review the case. That petition is pending, and the appellate court has not issued a directive to the circuit court, which keeps the original injunctions in place. No TPS terminations of the affected countries can happen while the injunctions are active.
An Uncertain Future
What happens next remains to be seen. The Second Circuit has yet to issue a decision and the en banc petition remains in the Ninth Circuit. Even the extension to Dec. 31, 2022, is not guaranteed. If a non-appealable court determination allows the TPS expiration to continue, terminations could begin before the end of 2022. If this happens, DHS will give TPS holders at least 120 days’ notice.
There are steps that Haitian TPS holders can take today that will extend their status. DHS announced a new Haiti TPS designation on May 22. Any current Haitian TPS holders should reapply for TPS under the new designation. Doing so will provide protected status through Feb. 3, 2023, regardless of court decisions in the three lawsuits. The application can be completed using Form I-821.
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