Temporary Protected Status (TPS)

• What is Temporary Protected Status (TPS)?
• Rules for Eligibility for TPS
• Foreign Nationals in Removal Proceedings and TPS
• Process for Filing for TPS
• Rules for Claiming TPS Benefits if Granted by Immigration Judge or the Immigration Board of Appeals
• Rules for Maintaining TPS
• Benefits of TPS
• Adjustment or Change of Status
• Rules for Temporary Treatment Benefits
• Advice

 

What is Temporary Protected Status (TPS)?

Temporary Protected Status (TPS) is a temporary benefit provided to nationals of a country designated by the Secretary of Homeland Security as unable, due to conditions in the country, to safely handle the return of its nationals.^{1 2} If a national of a country designated for TPS is granted TPS, he or she is not removable from the United States, may be granted an employment authorization document (EAD), and may be granted authorization to travel. However, TPS is a temporary benefit and it does not lead to any lawful permanent resident status or any other immigration status. TPS beneficiaries may apply to change to a nonimmigrant status, adjustment to permanent resident status, or for an immigration benefit for which they are eligible. In order for a person with TPS to maintain his or her status, he or she must re-register for benefits during the re-registration period for his or her country designated for TPS. Nationals of a country designated for TPS who come to the United States between registration periods and would qualify for TPS if not for that are eligible for temporary treatment benefits instead. This article will explain who is eligible for TPS, how to apply for TPS, benefits that come from TPS, and the process for adjustment from TPS.

Rules for Eligibility for TPS ³

In order to be eligible for TPS, one must be either a national of a country designated for TPS or a person without nationality who last resided in a country designated for TPS. The following is a table of the current TPS-designated countries courtesy of the United States Citizenship and Immigration Services (USCIS):

* As long as the preliminary injunction ordered by the court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect, or by other order of the court.

TPS for current beneficiaries under the designation for Honduras will continue, provided that they properly re-registered for TPS during at least one of the following registration periods for their country. If you have not re-registered during at least one of the following registration periods, you should file now and explain your reasons for filing late.

** As long as the preliminary injunction ordered by the court in Ramos et al v. Nielsen et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect, or by other order of the court.

TPS for current beneficiaries under the designation for Nepal will continue, provided that they properly re-registered for TPS during at least one of the following registration periods for their country. If you have not re-registered during at least one of the following registration periods, you should file now and explain your reasons for filing late.

*** Current beneficiaries under the TPS designation for Nicaragua do not need to re-register to maintain TPS, provided that they properly re-registered for TPS during one of the following registration periods for Nicaragua.

December 15, 2017, through February 13, 2018
May 16, 2016, through July 15, 2016

**** Current beneficiaries under the TPS designation for Sudan do not need to re-register to maintain TPS, provided that they properly re-registered for TPS during at least one of the following registration periods for their country.

October 11, 2017 through December 11, 2017
January 25, 2016 through March 25, 2016

Note: Information current as of 04/05/2021

Provided that the applicant is a national or is without nationality but was last a national of a TPS designated country, he or she must file for TPS benefits during the open initial or re-registration period, or must meet the requirements for late initial filing pursuant to an extension of the TPS designated country's late initial filing period. In order to qualify for late filing, an applicant must satisfy at least one of the following conditions:

Was a nonimmigrant, granted voluntary departure status, or any relief from removal, or
Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending, or
Was a parolee or had a pending request for re-parole, or
Is a spouse of an individual who is eligible for TPS.

Furthermore, any person who was an unmarried child of a person eligible for TPS at the time of the TPS designated country's initial or re-designation period is eligible regardless of late filing.

The applicant must have been continuously physically present in the United States since the effective date of the most recent designation date of his or her country and have been continuously residing in the United States since the date specified for a given country. Applicants may still be eligible if they have had “brief, casual, and innocent departures from the United States” since the effective date of the most recent designated date for a TPS country. An applicant must disclose any such departures to USCIS when applying or re-registering for TPS, and USCIS will determine if the applicant is still eligible for TPS status.

Applicants will be ineligible for TPS benefits or will be unable to maintain an existing TPS if:

They have been convicted of any felony or two or more misdemeanors in the United States;
Are found inadmissible as an immigrant under applicable grounds,⁴ including non-waivable or criminal grounds;
Are subject to any mandatory bar to asylum;
Fail to meet continuous physical presence and continuous residence requirements;
Fail to meet initial or late initial TPS requirements;
Fail to re-register for TPS without good cause.

Foreign Nationals in Removal Proceedings and TPS

If an immigration judge finds that a person in removal proceedings is eligible for TPS, the judge will close the case and direct him or her to apply for TPS.⁵ Provided that the person is approved for TPS, he or she will be protected from removal from the United States so long as his or her country of nationality is still designated for TPS.⁶

Process for Filing for TPS⁷

Applicants must register or re-register for TPS benefits pursuant to the registration period and re-registration period dates for their TPS-designated country. In order to register for TPS benefits, an applicant must submit the following:

Form I-821, Application for Temporary Protected Status (TPS)
Form I-765, Application for Employment Authorization (EAD) [Note that this must be filed regardless of whether or not the applicant is seeking an employment authorization]
Evidence of identity, and evidence of nationality of a country designated for TPS; the following table courtesy of USCIS are the types of evidence for this that they accept, with primary evidence being preferred.

Evidence of date of entry to the United States (e.g. copy of passport, I-94 form)
Evidence of continuous physical presence in the United States since your country's most recent designation date (e.g. Employment records, rent receipts, utility bills, letters from companies, hospital records, attestations by organization officials who know applicant and where he or she resides)
A fee for registering for TPS for the first time, table below courtesy of USCIS:

If an applicant cannot afford the fee for filing for TPS benefits, he or she must file a fee waiver request on a Form I-912, Application for Fee Waiver. If the fee waiver request is denied, the applicant may file fees for whichever is later between the registration deadline and 45 days after the date on the fee denial notice.

If an applicant is aware that he or she has a relevant ground for inadmissibility, he or she must include a Form I-601, Application for Waiver of Grounds of Inadmissibility, along with his or her TPS application. Waivers are granted for certain inadmissibility grounds, for humanitarian reasons, to preserve family unity, or if USCIS determines it is in the public interest. Provided that a ground for inadmissibility is waived, the applicant will not need to include it on a Form I-601. However, if the applicant has a different ground for inadmissibility on a later application, he or she will need to include that on a Form I-601.

After submitting an applicant submits his or her application, USCIS will review it to determine if the applicant is eligible for TPS benefits and, if the applicant applied for it, an EAD. During the review, USCIS will schedule an appointment at an Application Support Center (ASC) for the applicant to have his or her biometrics taken. If a TPS beneficiary has previously done this, the ASC appointment may be skipped if the previously taken biometrics are reusable, although the applicant will still have to pay the biometrics fee.

Near the end of the process, USCIS may send a request for evidence (RFE) or a notice of intent to deny if the submitted evidence is insufficient to approve the applicant for a TPS. If this happens, the applicant must respond expeditiously to preserve his or her chances of being approved for TPS.

If USCIS ultimately denies the TPS application, the applicant may be able to appeal within 30 days of the denial at the USCIS Administrative Appeals Office. Appealing requires the filing of a Form I-290B and a $630 fee or Form I-912, Application for Fee Waiver, if the applicant cannot pay the fee. TPS applicants who were denied on certain criminal or security grounds may be ineligible to appeal, though they may still request review by an immigration judge. Applicants who are considering appeals of a denial of TPS should consult an experienced immigration practitioner to assess if appealing the denial of TPS is the best course of action for them.

Rules for Claiming TPS Benefits if Granted by Immigration Judge or the Immigration Board of Appeals

If TPS is granted by an immigration judge or the Board of Immigration Appeals, the person on TPS must submit proof of the TPS grant when he or she files for his or her first TPS benefit.

Rules for Maintaining TPS

All people with TPS must re-register during each re-registration period. The re-registration period varies depending on the country designated for TPS. If a person with TPS changes addresses, he or she must notify USCIS immediately.

Benefits of TPS

Pursuant to INA § 244(a)(1)(A), persons under TPS are shielded from deportation.⁸ However, the mere grant of TPS does not make the beneficiary admissible if he or she was inadmissible. Furthermore, the grant of TPS does not allow for pending removal proceedings to be terminated.⁹

Persons on TPS are granted employment authorization for the shorter time period for 1 year, or for the duration of the initial TPS grant if it is shorter than 1 year. This employment authorization may be renewed with any extensions of TPS.¹⁰

Persons on TPS may travel abroad after being granted advance parole and subsequently be readmitted under TPS status rather than as a parolee provided that they return in a timely manner.¹¹ However, since the grant of TPS does not waive the 3 or 10-year bars of inadmissibility [see article], a TPS beneficiary who had accrued the requisite amount of unlawful presence should consult with an experienced immigration attorney before seeking to depart under a grant of advance parole.¹² However, do note that pursuant to Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), attempting to reenter to the United States after being granted advanced parole will not trigger the 3 or 10 year bar of inadmissibility if the returnee has a pending adjustment of status application.

Adjustment or Change of Status

Persons on TPS may adjust [see article] or change status. Being granted TPS does not result in the loss of any other immigration status.¹³ However, since the grant of TPS does not waive or nullify inadmissibility due to unlawful presence or deportability, the TPS grantee will be required to address any inadmissibility grounds in a manner pursuant to the immigration status he or she is seeking to change or adjust to. For example, a TPS beneficiary with a 3 or 10-year bar of inadmissibility would require a waiver of inadmissibility in order to adjust status. Immigration authorities hold the position that persons on TPS who were out of status before being granted TPS are ineligible to adjust status.¹⁴ Additionally, persons who are inadmissible for having entered the United States without inspection are ineligible to adjust status unless the applicant is an immediate relative of a U.S. citizen or a special immigrant under INA § 101(a)(27)(H).¹⁵

TPS beneficiaries may apply for asylum, although the grant of TPS cannot be used as an element of proof for eligibility for asylee status.¹⁶

Upon the expiration of TPS, a former beneficiary may apply for cancellation of removal [see article]. Time spent on TPS will not constitute a break in presence for purpose of eligibility for cancellation of removal, although it will also not count toward time accrued for purpose of cancellation of removal unless the Attorney General determines that extreme hardship exists.¹⁷

Rules for Temporary Treatment Benefits

If a person from a country designated for TPS comes to the United States between registration periods for the registration period for their country designated for TPS, he or she may apply for temporary treatment benefits instead. An applicant for temporary treatment benefits will be found eligible if he or she would have been eligible for TPS but for applying outside of the registration period. An application may be initially filed without fee, although the applicant must pay a registration fee or seek a waiver for inability to pay within thirty days of the registration period designated by the United States Department of Homeland Security (DHS).¹⁸

If an application for temporary treatment benefits is denied, the applicant will have no grounds for appeal. However, the denial of temporary treatment benefits will not be held against an application for TPS.¹⁹

Temporary treatment benefits persist until a final determination is made on the beneficiary's eligibility for TPS or if sixty days elapse from the date that notice is published that the country designated for TPS will no longer be designated for TPS.²⁰

Advice

While TPS is a powerful benefit, it is important to be aware of its limitations. TPS is, as its name indicates, a temporary benefit. If an alien's country loses its TPS designation, he or she will lose TPS benefits as soon as the registration period runs out. For this reason, persons on TPS should, in addition to ensuring that they maintain TPS, consult with an experienced immigration attorney to determine eligibility for adjustment of status. Provided that a TPS beneficiary is eligible for adjustment, TPS functions as a bridge to obtaining a permanent immigration status.

Since TPS does not waive inadmissibility caused by accrual of unlawful presence, TPS beneficiaries who may be subject to the 3 or 10 year bars of inadmissibility should consult with an experienced immigration attorney before departing the country. Although the bars will not prevent reentry pursuant to timely return after leaving on a grant of advance parole if the TPS beneficiary has a pending adjustment of status application, those bars of inadmissibility will need to be addressed in order to adjust status

Persons from countries designated for TPS should consult with an experienced immigration attorney prior to applying for TPS, both for an evaluation of eligibility for TPS, and in order to determine whether based on specific circumstances, whether the alien may be eligible for a less temporary immigration benefit. Since the application process for TPS requires numerous forms and knowledge of the different registration periods for TPS designated countries, persons who are seeking TPS should consult with an experienced immigration attorney for assistance in the TPS application process.

_______________________

1. Weissbrodt, David and Laura Danielson, Immigration Law and Procedure in a Nutshell. (West 14th Ed. 2014) 351
2. INA § 244 [section of the INA concering TPS]
3. Citing for the section, “Temporary Protected Status,” USCIS, June 25, 2015, available at http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status [link]
4. Pursuant to INA § 212(a)
5. Weissbrodt and Danielson 352
6. Id.
7. Citing for the section, “Temporary Protected Status,” USCIS
8. S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 687
9. Kurzban 687, citing Matter of Sosa Ventra, 25 I&N Dec. 391 (BIA 2010)
10. Kurzban 687, citing INA §§ 244(a)(1)(B) and (2); 8 C.F.R. 244.12(a), 1244.12(a)
11. Kurzban 687, citing INA § 244(f)(3); 8 C.F.R. §§ 244.15, 1244.15
12. Kurzban 687, citing INA §§ 212(a)(9)(B)(i)(I) and (II) [for 3 and 10 year bars]
13. Kurzban 687, citing INA § 244(f)(4); 8 C.F.R. § 244.10(f)(iv)
14. Kurzban 687, citing Letter, Miller, Acting Asst. Comm. Adjudications (Mar. 30, 1993), reprinted in 70 No. 22 Interpreter Releases 753, 770-71 (June 7, 1993)
15. Kurzban 687, citing Legal Opinion, Virtue, Acting G.C. (Mar. 4, 1991), reprinted in 68 No. 15 Interpreter Releases 461, 483-86 (Apr. 22, 1991); AFM at 40.6.2(a)(3)(ii); Serrano v. Attorney General of the U.S., 655 F.3d 1260 (11th Cir. 2011). Also notes that in Flores v. USCIS, 718, F.3d 548 (6th Cir. 2013), court held that INA § 244(f)(4) allows for TPS beneficiaries to adjust status who are EWI, and that USCIS's interpretation is unreasonable.
16. Kurzban 688, citing Gomez v. INS, 947 F.2d 660, 664-68 (2d Cir. 1991)
17. Kurzban 688, citing INA § 244(e)
18. 8 CFR § 244.5
19. Id.
20. 8 CFR §244.13

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 687-88,. Print. Treatises & Primers.

Weissbrodt, David and Laura Danielson. Immigration Law and Procedure in a Nutshell. 6th ed. West, 2011. 351-52, Print. West Nushell Ser.

“Temporary Protected Status,” USCIS, June 25, 2015, available at http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status [link]