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Changes to Temporary Protection Status Changes to Temporary Protection Status

Changes to Temporary Protection Status

While certain U.S. immigration topics continue to dominate the news, there are other changes underway to our immigration system that are slightly less visible and in many ways may be more impactful to employers.  Employers, particularly those engaging unskilled and semi-skilled labor, should be aware of the following developments that may impact their ability to hire or retain certain foreign national employees.
Good and Bad News on TPS
The Department of Homeland Security (DHS) has determined that country-specific conditions that gave rise to Temporary Protected Status (TPS) for some countries no longer exists. While the very nature of TPS is temporary, such designations have routinely been extended under past administrations, leading to decades of lawful presence and employment authorization for many TPS recipients. An estimated 400,000 individuals reside in the U.S. under TPS designation.  TPS is now being terminated for the following countries according to the following timeframes:
  • El Salvador: Sept. 9, 2019 (designated in 2001)
  • Haiti: July 22, 2019 (designated in 2010)
  • Honduras: Jan. 5, 2020 (designated in 1999)
  • Nepal: June 24, 2019 (designated in 2015)
  • Nicaragua: Jan. 5, 2019 (designated in 1999)
  • Sudan: Nov. 2, 2018 (designated in 1997)
Employers should also note that TPS is set to expire for the following countries and the Trump administration has not yet confirmed its plans for extension or termination beyond the dates indicated below:
  • Somalia: Sept. 17, 2018 (designated in 1991)
  • South Sudan: May 2, 2019 (designated in 2011)
  • Syria: Sept. 30, 2019 (designated in 2012)
  • Yemen: Sept. 3, 2018 (designated in 2015)
In a significant departure from past policy and in response to the Trump administration’s announcement ending many TPS programs, the Sixth and Ninth Circuit Courts of Appeal have both ruled that an award of TPS counts as a lawful admission for the purposes of adjusting status to permanent residence (green card status). This paves the way for some TPS holders to pursue green card status prior to the termination of their TPS program. For these individuals to file an adjustment application under this scheme, the following criteria must be met:
  • Entry into the United States without inspection prior to receipt of TPS;
  • Currently present in the U.S. in valid TPS status;
  • Otherwise eligible for adjustment of status meaning:
    • An immigrant visa number must be immediately available;
    • He or she is not inadmissible; and
    • None of the statutory or regulatory bars to adjustment apply; and
  • Resident of a state within the jurisdiction of the Sixth or Ninth Circuit Court of Appeals (Kentucky, Tennessee, Ohio, Michigan, Alaska, Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Hawaii, Northern Mariana Islands, and Guam). Moving to a state within one of these Circuits is acceptable. 
Practically speaking, individuals with TPS status who will most likely benefit from these rulings are immediate relatives of U.S. citizens, as well as some that may qualify for an employment-based visa category. Other applicants are likely prohibited from adjusting status as part of a statutory bar stemming from their unlawful entry into the U.S.

Additionally, because the Sixth and Ninth Circuits ruled that a grant of TPS status counts as a lawful admission, the reasoning of both decisions should apply equally to a TPS recipient who initially entered without inspection and now seeks to change status from TPS to a temporary nonimmigrant visa status.

While employers should be mindful of these current and potential changes to TPS designations, employers should NOT screen existing or prospective employees on the basis of national origin or otherwise engage in potentially discriminatory employment practices that could run afoul of Title VII and/ or the Immigration Reform and Control Act.  Whether TPS-specific employment authorization expires next month or next year, employers must continue compliance with I-9 employment verification and re-verification obligations.

Please contact Jenifer M. Brown with any questions related to U.S. immigration matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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