by Forrest G. Read IV
Jackson Lewis P.C. is an IMA Member
Temporary Protected Status (TPS) may be an endangered species. Having terminated TPS for Guinea, Liberia and Sierra Leone during the past year, the Trump Administration has turned its attention elsewhere. There are currently ten remaining countries whose citizens are eligible for TPS. Of those, six will be terminated over the next 18 months. The Trump Administration has announced the termination of TPS status for Haiti, Nicaragua, El Salvador, Nepal, Honduras and Sudan. Somalia, South Sudan, Syria and Yemen for now remain in the protected category.
USCIS grants TPS to nationals of certain countries who are in the U.S. (legally or illegally) when conditions in that country “temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” Common grounds for granting TPS include highly destructive natural disasters or massive civil conflicts, or both, in certain countries.
There have been protests in response to almost every termination, and there has been litigation initiated to prevent the terminations (at least for now). In one such case, on July 25, 2018, a U.S. District Judge in Boston ruled, over the government’s objection, that a case filed on behalf of TPS beneficiaries from Haiti, El Salvador and Honduras, Centro Presente v. Trump, may proceed. Referencing discriminatory statements made by President Donald Trump, the standard applied by Department of Homeland Security, and a report about country conditions in Haiti, El Salvador and Honduras, the complaint alleges that the termination of TPS was based on racial animus. In response, the government argued based on the Supreme Court’s decision in the Travel Ban 3.0 case that the executive had broad discretion to act in this area and thus was not subject to such a challenge. The Court rejected that argument and held that the plaintiffs alleged viable constitutional claims.
The State Department in late 2017 warned the Administration about the unintended consequences of terminating TPS for El Salvador, Honduras and Nicaragua, stating that this “could worsen efforts to combat illicit drug trade and gang violence.” Senator Robert Menendez (D-NJ) also warned that the termination of TPS would mean that the U.S. citizen children of TPS beneficiaries would be placed in danger by removal to countries where violence is rampant.
It is estimated that more than 300,000 immigrants and their families are currently living in the U.S. in TPS – most are from Haiti, El Salvador and Honduras.
Many TPS beneficiaries have employment authorization documents (EAD) that may have expired and have been automatically renewed. To determine expiration and renewal and what the next steps should be, employers can use this tool.
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