The Department of Homeland Security announced that Temporary Protected Status (TPS) and employment authorization are automatically extended until June 30, 2024, for beneficiaries from El Salvador, Honduras, Nepal, and Nicaragua who are subject to the Ramos and Bhattarai TPS litigations. The same extension applies to beneficiaries from Haiti and Sudan who are also subject to those litigations and were part of the 2011 designation for Haiti and the 2013 TPS designation for Sudan. No applications or fees are required to obtain these extensions.

Despite this, beneficiaries covered by the automatic extensions and who would like to obtain an Employment Authorization Document (EAD) with an expiration date of June 30, 2024, must file a Form I-765 and pay the fee or request a fee waiver.

Individuals from Haiti or Sudan who received their grant of TPS in 2021 or 2022, respectively, are not covered by the litigations or the automatic extensions. For those individuals, their TPS status and EADs remain valid until the expiration dates on their documents.

Anyone from Haiti or Sudan who wants to obtain TPS under the new designations must be eligible and must apply before the registration periods close on February 3, 2023, for Haiti, and on October 19, 2023, for Sudan. To be eligible, individuals from Haiti must have continuously resided in the United States since July 29, 2021, and individuals from Sudan must have continuously resided in the United States since March 1, 2022.

Jackson Lewis attorneys are available to assist you in determining whether TPS beneficiaries have work authorization and how to document their work authorization for Form I-9 Employment Eligibility Verification purposes.

The Department of Homeland Security has issued a notice extending Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan through December 31, 2022.

The automatic extension is intended to ensure continued compliance with preliminary injunction orders that have been entered in the various cases challenging the Trump Administration’s attempted termination of TPS for these countries.

The EADs that will be automatically extended must be category A-12 or C-19 and have one of the following expiration dates:

2017:    July 22, November 2

2018:    January 5, January 22, March 9, June 24, July 5, November 2

2019:    January 5, April 2, June 24, July 22, September 9

2020:    January 2, January 5, March 24,

2021:    January 4, October 4

Beneficiaries from the countries in question also are entitled to an automatic extension of their other TPS-related documentation (I-94 Arrival/Departure Records and I-797 Notices of Action) if they applied to re-register during one of the previous DHS-announced registration periods.

Should litigation be concluded prior to December 31, 2022, with the determination that TPS should be terminated prior to that date, there will be at least a 120-day notice or winddown period. Based on a separate agreement, TPS beneficiaries from El Salvador will be entitled to a 365-day winddown period.

Although those from Haiti are entitled to this new automatic extension, they also are eligible to apply for TPS under the new 18-month TPS designation for Haiti effective August 3, 2021, through February 3, 2023. Eligible Haitians are encouraged to apply for the new designation as soon as possible to ensure they do not have any gaps in authorization.

To demonstrate the automatic extension for I-9 Employment Eligibility Verification purposes, the beneficiary must only show an expired EAD (in the correct category with one of the listed expiration dates) along with the Federal Register notice. Any beneficiary who would like to have an EAD with the actual December 31, 2022, expiration will have to apply for a new EAD and pay the required fee or request a fee waiver.

If you need assistance in determining work authorization or how to complete the employment verification process, please call your Jackson Lewis attorney or reach out to the Jackson Lewis Immigration Practice Group at TPS@Jacksonlewis.com.

The Department of Homeland Security (DHS) announced that, because of new dire circumstances, TPS for Haiti will be designated for 18 months effective August 3, 2021, through February 3, 2023.

The designation is a response to the “[d]eteriorating political crisis, violence, and a staggering increase in human rights abuses,” as well as a deteriorating healthcare situation, along with food insecurity and lack of access to basic services.

Eligible Haitians must have continuously resided in the United States since July 29, 2021, and been continuously physically present since August 3, 2021. The 18-month registration period will run until February 3, 2023.

Thousands of Haitians already have TPS-related documentation, including EADs, based on pending litigation. The DHS recommends all Haitians who meet the eligibility requirements apply as soon as possible for the new 18-month TPS period because the new designation provides more security. Failure to apply could result in possible gaps in status or employment authorization. Instructions on how to apply can be found in the Federal Register.

Please call your Jackson Lewis attorney or reach out to the Jackson Lewis Immigration Practice Group at TPS@Jacksonlewis.com if you need assistance in determining work authorization, how to complete the employment verification process, or strategy options.

The Department of Homeland Security has announced that it will be extending Haitian Temporary Protected Status (TPS) for 18 months, until November 2022. It also has officially set out the application procedures for Burmese TPS, which the Secretary of DHS announced in March 2021, but had not yet issued implementing instructions.

Based on pending litigation, Haitian TPS had been extended through October 4, 2021. With the new announcement, Haitians who have been in the United States continuously since May 21, 2021, will be eligible to apply for, or extend, TPS until November 2022. Approximately 55,000 Haitians currently hold TPS, which was initially designated in January 2010 following the devastating earthquake in Haiti. That TPS designation was extended several times until in January 2018, when DHS issued a Federal Register notice announcing termination of Haiti’s TPS designation. However, due to court injunctions, TPS remained in effect for those already approved. It is estimated that more than 100,000 additional Haitian nationals will now be eligible for the 18-month designation. DHS Secretary Alejandro Mayorkas decided to extend Haitian TPS because that country “is currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic.” Lawmakers from both sides of the aisle had been urging the Biden Administration to extend TPS protections for Haiti.

In March 2021, Secretary Mayorkas announced that, due to increasing oppression and human rights violations following a military coup, individuals from Burma would become eligible for TPS for an initial 18 months, through November 24, 2022. On May 25, 2021, DHS issued a Federal Register notice setting out applicable eligibility criteria and the application process.

Those who previously resided in Burma may apply for TPS if they meet the general eligibility requirements and if:

  • They have continuously resided in the United States since March 11, 2021 (when Burmese TPS was announced); and
  • They have been physically present in the United States since May 25, 2021.

USCIS estimates that 1,600 people will be eligible for Burmese TPS. Those who are eligible also will be able to apply for employment authorization and travel authorization. The registration period for TPS will run for 180 days, from May 25, 2021, through November 22, 2021.

In conjunction with Burmese TPS, DHS also is allowing Burmese students in F-1 status who are experiencing economic hardship to work an increased number of hours while school is in session.

If you have any questions about Haitian or Burmese TPS, Jackson Lewis attorneys are available to assist. Updates will be provided when the details on the Haitian TPS extension are published in the Federal Register.

 

The Department of Homeland Security (DHS) announced a further extension of status and work authorization until October 4, 2021, for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan on December 9, 2020.

TPS allows individuals to remain in the U.S. because of disease, natural disaster, or conflict in their home countries. Approximately 400,000 nationals from 10 countries have been granted TPS. Many of those beneficiaries have been in the U.S. for years and have U.S. citizen children. Since 2017, the Trump Administration has been trying to terminate TPS for most countries. Some of the Administration’s actions, however, have been enjoined by court challenges that are still continuing. In response to court orders, DHS has been extending both TPS and work authorization for the covered beneficiaries.

As of December 9, 2020, work authorization for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will be extended automatically if:

  • The individual’s current EAD was issued with an A-12 or C-19 category code, and
  • Carries an expiration date of:
    • July 22 or November 2, 2017
    • January 5, January 22, March 9 June 24, July 5, or November 2, 2018
    • January 5, April 2, June 24, July 22, or September 9, 2019
    • January 2, January 5, or March 24, 2020
    • January 4, 2021

Forms I-94 and I-797 also will be automatically extended until October 4, 2021, if the beneficiaries properly filed for re-registration during one of the DHS-announced re-registration periods.

To complete or update Form I-9 Work Authorization Verifications, the beneficiary may present their EAD card (with one of the above expiration dates) along with the Federal Register notice automatically extending work authorization until October 4, 2021.

Extending work authorization for current employees based upon this automatic extension does not require Form I-9, Section 3 reverification. Instead, the employer should update the Section 2 Additional Field noting EAD EXT, October 4, 2021 (and then initial and date the correction). In this situation, reverification would not be required until October 5, 2021.

If any of the cases that have blocked the TPS terminations conclude in the government’s favor before October 4, 2021, DHS has promised there will be winddown periods of at least 120 days to allow a reasonable repatriation. Since President-Elect Joseph Biden has pledged to review TPS for those in vulnerable populations who cannot safely return to their home countries, it would seem that the timing of the extension, along with the upcoming inauguration, may favor those in TPS.

For more information about TPS work authorization, please reach out to your Jackson Lewis attorney. You may also refer to our TPS Tool.

TPS employment authorization has been extended automatically until January 2, 2020, for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan.

In October 2018, a preliminary injunction was issued in Ramos v. Nielsen, preventing implementation of the Administration’s decision to terminate TPS for the four countries.  At that time, DHS announced that if the injunction were still pending in March 2019, it would extend all TPS-related documents until January 2020 – and that is exactly what it did. Detailed information about the automatic extension is published in the Federal Register.

The TPS extension does not apply to Nepal or Honduras because neither country was included in the Ramos lawsuit. However, in February 2019, TPS beneficiaries from those two countries filed a class action similar to Ramos in the federal court for the Northern District of California.  That case is pending.

If you have questions about how these developments affect your employees, please reach out to your Jackson Lewis attorney.  We have also updated our TPS tool which may provide relevant information.

Following Judge Edward Chen’s preliminary injunction blocking the termination of TPS status for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, the DHS has issued guidance regarding its compliance with that Order.

TPS status for beneficiaries from the four countries will continue so long as the preliminary injunction remains in effect.

According to DHS, if the injunction remains in force into March 2019, the agency will issue another notice to extend TPS-related documentation (including EADs) for another nine months. This means that TPS beneficiaries from those countries may have the opportunity to remain in the U.S. to work and continue to pursue other options for maintaining status until January 2020.

If the preliminary injunction is reversed prior to March 2019, DHS states that it will provide for an “orderly transition.” The orderly transition is defined as the later of (a) 120 days after the reversal of the preliminary injunction, or (b) the previously announced termination date. Because of the timing, this effectively means the termination dates for Haiti (July 22, 2019) and El Salvador (September 9, 2019) would remain in effect.

For the moment, however, DHS is automatically extending the EADs for certain individuals from Sudan and Nicaragua until April 2, 2019. This is particularly important because their TPS statuses were scheduled to terminate on November 2, 2018, and January 5, 2019, respectively.

Automatic extensions will not apply if the TPS designation of any individual has been finally withdrawn. Extensions also will not apply if the TPS beneficiary no longer meets the other eligibility requirements for TPS.

Jackson Lewis will continue to provide updates related to these TPS terminations. For information about the automatic extension of TPS EADs, please see our TPS Work Authorization Determination Tool and reach out to your Jackson Lewis attorney for details and specific advice.

 

California Federal Judge Edward M. Chen has issued a nationwide preliminary injunction in Ramos v. Nielsen, preventing the Administration from implementing its decisions to terminate Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua, and Sudan, pending final resolution of the case.

This may be particularly good news for Sudanese TPS beneficiaries whose status is scheduled to be terminated in less than a month, on November 2, 2018. The others are scheduled to terminate on January 5, 2019 (Nicaragua), July 22, 2019 (Haiti), and September 9, 2019 (El Salvador).

In addition to finding that the plaintiffs in Ramos v. Nielsen were likely to prevail on the merits of the case, Judge Chen held that in balancing the equities, the immediate harm to the TPS beneficiaries far outweighed any immediate harm to the U.S. He found that the TPS beneficiaries, many of whom have U.S.-citizen children who know no other home than the one they have in the U.S., are facing a “Hobson’s choice” of either leaving the country without their children or leaving with their children and depriving those U.S.-citizen children of their lives in the U.S. Indeed, the Judge found that the U.S., rather than suffering harm from the continuation of TPS, actually might suffer economic harm due to the TPS terminations. Such prospective economic harm could include: $132 billion loss in GDP, $5.2 billion loss in Social Security and Medicare contributions, and $733 million in turnover costs in industries that now employ TPS beneficiaries, including “construction, hospitality, food service, landscaping, home health care, child care and retail . . . .” The court also noted the termination of TPS might have “adverse ramifications internationally” that ultimately would reverberate to the U.S. in the form of “’further irregular migration.’”

Echoing court decisions involving the Travel Bans and DACA, Judge Chen held that, on the merits of the case:

  • The Administration’s decision to no longer consider intervening country conditions may violate the Administrative Procedure Act; and
  • The Equal Protection Clause may have been violated, because of the possibility that the DHS decision to terminate TPS was pre-determined and infected with discriminatory animus.

Judge Chen has ordered the government to preserve the status quo “including all steps needed to ensure the continued validity of documents that prove lawful status and employment authorization for TPS holders” from El Salvador, Haiti, Nicaragua, and Sudan. He also ordered DHS to report within 15 days on the steps it is taking to comply. Judge Chen said he expects to set an expedited scheduled for the merits determination at the next hearing, on October 26, 2018.

Jackson Lewis will continue to provide updates through our blog and on our TPS Work Authorization Tool. Please contact Jackson Lewis with any questions.

USCIS will be issuing Notices of Continued Evidence of Work Authorization for certain Haitian TPS beneficiaries who applied for new EADs, but still have not received them.

In November 2017, DHS announced that Haitian Temporary Protected Status would terminate on July 22, 2019. At that time, individuals with TPS EADs that expired on January 22, 2018, were entitled to automatic extensions of their EADs for 180 days until July 21, 2018. Haitian TPS beneficiaries with EADs that expired on July 22, 2017, also were entitled to the automatic extension in certain circumstances.

It appears the USCIS has not been able to keep up with the demand for extension requests. The agency, without any formal announcement, has noted on its website that it will be automatically extending for another six months (until January 17, 2019) certain Haitian TPS EADs.

Haitian TPS beneficiaries will have work authorization valid until January 17, 2019, if:

  • The employee’s EAD has the code A12 or C19; and
  • The EAD expired on January 22, 2018; and
  • The employee applied for a new EAD during the last re-registration period: January 28, 2018, to March 19, 2018; or
  • The employee’s A12 or C19 EAD expired on July 22, 2017; and
  • The employee applied for a new EAD on or after May 24, 2017.

Because the beneficiaries entitled to this automatic extension already have applied for new EADs, the USCIS will be mailing individual Notices of Continued Evidence of Work Authorization that will confirm work authorization through January 17, 2019. These notices are being mailed during the week of July 22, 2018. Those who do not receive the new Notices within the week should contact USCIS at 202-272-8377 or the USCIS Contact Center number.

Until such Notice is received, eligible employees may provide their employers with the website notice as evidence of their automatic extensions.

Upon approval of an employee’s re-registration and EAD applications, a new EAD will be issued with an expiration date of July 22, 2019 – the final termination date of Haitian TPS.

For questions regarding this new automatic extension and its ramifications, please reach out to your Jackson Lewis attorney.

The NAACP has filed a suit in federal district court in Maryland alleging that ending Temporary Protected Status for Haiti was racially discriminatory and part of a plan to reduce immigrants of color to the U.S. (Nat’l Ass’n for the Advancement of Colored People v. Dep’t of Homeland Sec., D. Md., No. 1:18-cv-00239, complaint filed Jan. 24, 2018).  The plaintiffs allege violations of the Due Process and Equal Protection Clauses of the Constitution. They seek mandamus relief and a declaratory judgment to overturn the termination.

Finding that Haiti no longer met the requirements of the TPS program, Acting Secretary of Homeland Security Elaine Duke announced in November 2017 that Haitian TPS, which began in 2010 when an earthquake killed thousands on the island, would terminate on July 22, 2019. Although Haiti is one of the poorest countries in the world, the Administration cancelled TPS for the 50,000 to 60,000 Haitian beneficiaries because the country is no longer suffering directly as a result of the 2010 earthquake. Advocacy groups, members of Congress, and businesses that rely on these workers had argued for further extension of the TPS benefit.

The NAACP filed suit after disparaging remarks made by President Donald Trump about Haiti and African countries. The arguments in the suit are similar to those that have been made in response to Trump’s travel bans, which relied on the President’s remarks regarding individuals from Muslim countries. In addition to the termination of TPS, the Administration also decided that Haiti would no longer be eligible for H-2A and H-2B status.

The H-2 program brings unskilled workers to the U.S. to fill temporary, seasonal positions. DHS can remove any country from the H-2 program if it determines the country fails to meet requirements for continued designation. Haiti became eligible for these programs in 2012, primarily because this was seen as a way to bring some additional money into the Haitian economy and help with earthquake recovery. DHS stated that Haitians would no longer be eligible for H-2A and H-2B status because there were “high levels of fraud and abuse” by Haitians, as well as high rate of overstays (approximately 40 percent in 2016).

Haiti was not the only country to lose H-2 eligibility. Samoa and Belize were also removed from the eligible country list.

We will monitor and report on further TPS program developments. Please contact a Jackson Lewis attorney with any questions.