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The Immigration Observer

Much Ado About TPS

November 22, 2017 | Lepore Taylor Fox

As we sit down with our loved ones to give thanks this Thursday and as we turn the corner to the next holiday season, we also reflect on the developments in immigration policy in the last 30 days. November 2017 brought several important changes including a reversal of the long-standing policy on deference to prior adjudications and the 30/60/90-day rule for intent analysis.  This blog post, however, focuses on the changes to the TPS program. 

TPS - Temporary Protected Status – is a special designation of certain foreign countries where, due to some special conditions, nationals of these countries who, at the time of the designation, are physically located in the United States and are prevented from returning home safely. In the past, TPS designation has been granted where there was an ongoing armed conflict (i.e. civil war), a natural disaster/force majeure (such as an earthquake or a tsunami), or an epidemic.  The TPS designation is at the sole discretion of the Secretary of Homeland Security and is granted for a limited period depending on the nature of the condition and how quickly the dangerous condition is expected to persist. The designation can be renewed if the US government determines that the dangerous condition persists.

The TPS designation enables eligible foreign nationals to remain in the United States for the duration of the designation (i.e. to live in the U.S. legally) and also to apply for work authorization.  To take advantage of TPS benefits, the foreign national must register with U.S. Citizenship and Immigration Services (USCIS) by filing Form I-821, Application for Temporary Protected Status.  Foreign nationals with criminal convictions or those subject to security-related grounds of inadmissibility are not eligible for TPS.  Upon receipt of work authorization issued by the USCIS, TPS beneficiaries are able to work legally.

There are presently 10 countries designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen.  On November 6, 2017, Acting Secretary of Homeland Security Elaine Duke announced the termination of the TPS designation for Nicaragua effective January 5, 2019 and Honduras effective July 5, 2018.  On November 20, 2017, it was announced that TPS for Haiti will end effective July 22, 2019.

Nicaragua and Honduras were initially designated for TPS on January 5, 1999, in the wake of a hurricane that devastated the area.  The designation was repeatedly renewed for the last 17 years due to the Secretary of Homeland Security’s findings that persistent dangerous conditions in the region continued to preclude a safe return of tens of thousands of Nicaraguans and Hondurans in TPS status. What this means in practical terms is that these individuals have spent almost two decades building a life in the U.S. legally and becoming law-abiding, English-speaking, educated, gainfully employed, tax-paying members of our society. With the impending termination of their TPS designation, they may be forced to abandon the life they have built for themselves and return to a country which continues to present the same or possibly even more severe dangers it did at the turn of the century.  Families also face the possibility of separation between foreign-born parents and U.S. citizen children.  It’s reported within Nicaraguan and Honduran communities that many individuals may choose to go ‘underground’ rather than depart the U.S., adding an additional layer to the overarching issue of illegal immigration. 

Haiti was initially designated for TPS on January 21, 2010 after an earthquake which devastated the country.  Haitian nationals who have held TPS status since 2010 face similar issues to Nicaraguans and Hondurans.  In its statement, the Department of Homeland Security (DHS) stated that ‘Based on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable statute, the current TPS designation must be terminated.’  Questions remain however as to whether country conditions have really improved in Haiti and whether this declaration by DHS will simply prompt Haitian TPS holders to go underground.

In its statement, DHS said that by gradually phasing out TPS for Nicaragua, Honduras and Haiti, it creates an opportunity for TPS beneficiaries to pursue other visa options.  This of course may be true for some, and immigration counsel should be sought to comb through any viable family or employment-based visa options.  But the fact remains that many uneducated, lower skilled workers may not have any options.  And of course, there is the fact that there is an ever-growing list of visa categories that are presently under direct attack by the current administration curtailing the incentive to apply in the first place.  Thus, while the administration has vouched to eliminate illegal immigration, it is evident that it is also heavily targeting “legal immigration” – law-abiding individuals who have followed the law yet are either being forced out of the country or finding it more difficult to maintain legal visa status.  This attack on legal immigration will be further explored by this blog in future posts.