Update on Ramos v. Nielsen

In its Oct. 3, 2018, order, the U.S. District Court for the Northern District of California enjoined the Department of Homeland Security (DHS) from implementing or enforcing the determinations to terminate Temporary Protected Status (TPS) for Sudan, Nicaragua, Haiti and El Salvador while the case continued its way through the legal system. As a result, DHS may not effectuate the termination of TPS for these countries while the order remains in effect. The order also requires DHS to continue the validity of documentation showing lawful status and work authorization for affected, eligible TPS beneficiaries from those countries. DHS has published two previous Federal Register Notices (FRNs) on Oct. 31, 2018 (83 FR 54764) and March 1, 2019 (84 FR 7103) to ensure DHS’ compliance with the court’s order. On Nov. 1, 2019, DHS announced a third FRN that automatically extends the validity of TPS-related documentation for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.

Beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under INA section 244(c)(3) or 8 CFR 244.14 because of individual ineligibility.

Current Status

The Oct. 3, 2018, preliminary injunction is currently in effect. As a result of the, injunction, the TPS designations of Sudan, Nicaragua, Haiti and El Salvador remain in effect.

To comply with the court’s injunction, on Nov. 1, 2019, DHS announced a third FRN that automatically extends through Jan. 4, 2021, the following documents described in the notice: Employment Authorization Documents (EADs); Forms I-797, Notice of Action (Approval Notice); and Forms I-94, Arrival/Departure Record, (collectively, “TPS-related documents”) for eligible, affected beneficiaries of TPS for Sudan, Nicaragua, Haiti and El Salvador.

The government has filed its appeal of the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit. However, TPS beneficiaries will maintain their status during the appeal process provided they continue to meet all the individual requirements for TPS eligibility found in INA section 244(c) and 8 CFR 244, as well as in the instructions for Form I-821, Application for Temporary Protected Status. These requirements, including the most recent TPS re-registration requirements for beneficiaries under each country’s designation, are also available on the USCIS TPS web page and under the country-specific TPS web pages. For questions about travel for TPS beneficiaries, please see the TPS Travel page

In Case of Reversal

If the court reverses the preliminary injunction and that decision is final, the terminations of the TPS designations for El Salvador, Sudan, Nicaragua and Haiti will take effect, unless the final court order places other limitations on the terminations. Should the government prevail in its challenge to the Ramos preliminary injunction, the DHS secretary’s determination to terminate TPS for Nicaragua and Sudan will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court. The secretary’s determination to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the Ramos district court in order to allow for an orderly transition for affected TPS beneficiaries. 

Due to the preliminary injunction issued in Saget v. Trump, also enjoining the termination of TPS for Haiti, the government must prevail in its challenges to both the Ramos preliminary injunction and the Saget preliminary injunction in order for TPS for Haiti to terminate. In the event that the government does prevail in both cases, the DHS secretary’s determination to terminate TPS for Haiti will take effect no earlier than 120 days from the issuance of the later of the two appellate mandates to the District Court in order to allow for an orderly transition.   

For legal reasons, neither the 120-day orderly transition period for beneficiaries of TPS for Sudan, Haiti and Nicaragua nor the 365-day orderly transition period for beneficiaries of TPS for El Salvador will start automatically if there is a decision reversing the preliminary injunction. USCIS will inform TPS beneficiaries when either the 120-day or 365-day transition period will begin. The transition period will provide time for current TPS beneficiaries who do not have another lawful immigration status or authorization to remain in the United States to leave the United States, or they will be subject to removal.

Demonstrating Temporary Protected Status

As evidence of valid TPS, eligible beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador may show their most recently issued TPS-related documents, which have been specified in the Nov. 4, 2019 FRN as having been automatically extended through Jan. 4, 2021, along with that FRN (PDF).

DHS has automatically extended through Jan. 4, 2021, the validity periods of the following Forms I‑94 and Forms I-797, Notice of Action (Approval Notice), previously issued to eligible beneficiaries granted TPS under the designations for Sudan, Nicaragua, Haiti, and El Salvador:

Country

Beginning date of validity:

End date of validity:

Sudan

May 3, 2016

Nov. 2, 2017

Nov. 3, 2017

Nov. 2, 2018

Nicaragua

July 6, 2016

Jan. 5, 2018

Jan 6, 2018

Jan. 5, 2019

Haiti

Jan. 23, 2016

July 22, 2017

July 23, 2017

Jan. 22, 2018

Jan. 23, 2018

July 22, 2019

El Salvador

Sept. 10, 2016

Mar. 9, 2018

Mar. 10, 2018

Sept. 9, 2019

However, the extension of these validity periods applies only if the eligible TPS beneficiary properly filed for TPS re-registration during one of the most recent DHS-announced registration periods for Nicaragua: May 16-July 15, 2016 or Dec. 15, 2017-Feb. 13, 2018; Sudan: Jan. 25-March. 25, 2016 or Oct. 11-Dec. 11, 2017; El Salvador: July 8-Sept. 6, 2016 or Jan. 18-Mar. 19, 2018; Haiti: Aug. 25-Oct. 26, 2015, May 24-July 24, 2017, or Jan. 18-Mar. 19, 2018.

If the Ramos preliminary injunction continues in effect beyond Jan. 4, 2021, DHS will continue to issue notices that will automatically extend TPS-related documentation for all affected beneficiaries under the TPS designations for El Salvador, Nicaragua and Sudan, and for affected beneficiaries under the TPS designation for Haiti so long as either the Ramos or Saget preliminary injunctions remain in place; or by other order of the courts.

Current End Date

TPS beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador will maintain valid TPS in the United States as long as the Ramos preliminary injunction, or any superseding court order, enjoins DHS from implementing and enforcing the TPS termination determinations, provided that each individual TPS beneficiary under these designations maintains his or her individual eligibility for TPS. Beneficiaries of TPS for Haiti will also retain TPS as long as the Saget court order enjoining the termination of TPS for Haiti remains in effect. Some TPS beneficiaries may also have other valid immigration status or authorization to remain in the United States that may continue once TPS for their country ends. If a court order permits the termination of TPS for any country, USCIS will issue an FRN, if warranted, and update its website to inform beneficiaries of the termination date and any applicable orderly transition period.  

Re-Registration

Current beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador do not need to re-register to maintain TPS at this time, provided that they properly re-registered for TPS during one of the re-registration periods for their country listed below. If you properly re-registered during the following re-registration periods for your country, then you do not need to submit new biometrics, unless USCIS specifically sent you a notice informing you to attend a biometrics collection appointment.

Country

Re-Registration Dates

Sudan

Oct. 11, 2017 – Dec. 11, 2017

Jan. 25, 2016 – March 25, 2016

Nicaragua

Dec. 15, 2017 – Feb. 13, 2018

May 16, 2016 – July 15, 2016

Haiti

Jan. 18, 2018 – March 19, 2018

May 24, 2017 – July 24, 2017

Aug. 25, 2015 – Oct. 26, 2015

El Salvador

Jan. 18, 2018 – March 19, 2018

Jul. 8, 2016 – Sept. 6, 2016

Beneficiaries who did not re-register during at least one of the periods described above for their country may still file Form I-821, Application for Temporary Protected Status, but must demonstrate “good cause” for failing to re-register on time, as required by law. See INA, section 244(c)(3)(C).

Late re-registrants must submit a letter describing all of their reasons for failing to file on time in accordance with the most recently announced re-registration procedures in the FRN for their TPS-designated country.

If you re-registered outside of the re-registration period because DHS announced the termination of TPS for your country, you should explain how that announcement affected you, including how the termination decisions impacted your failure to re-register. USCIS may consider this explanation for purposes of meeting the “good cause” exception for failing to re-register on time. However, if the announcement of the TPS termination did not cause you to file late, you should not include it as a reason. Applicants must be truthful in explaining their reasons.

Biometrics

TPS beneficiaries who did not file for re-registration under the procedures announced for re-registration for their country during at least one of the time periods listed in the table above must submit biometrics when they file a late re-registration application if they are age 14 or older. USCIS will send the individual a scheduling notice for biometrics collection, if required. USCIS may also send a separate biometrics scheduling notice to a TPS beneficiary who has properly re-registered, but who later filed a Form I-765, Application for Employment Authorization, for an EAD.   

Employment Authorization Documents

In the FRN (PDF) published on Nov. 4, 2019, DHS announced the automatic extension of EADs for TPS beneficiaries under the designations for Sudan, Nicaragua, Haiti, and El Salvador through Jan. 4, 2021, with the category codes “A-12” or “C-19” and one of the expiration dates shown below:

07/22/2017

11/02/2017

01/05/2018

01/22/2018

03/09/2018

11/02/2018

01/05/2019

04/02/2019

07/22/2019

09/09/2019

01/02/2020

TPS beneficiaries with EADs that are auto-extended do not need to apply for a new EAD, but they may if they choose to do so. Additionally, TPS beneficiaries from all four countries who have EAD and re-registration applications pending will receive an EAD with a validity date ending Jan. 4, 2021, if USCIS approves their re-registration and EAD applications.

Any eligible beneficiary under the TPS designations for Sudan, Nicaragua, Haiti or El Salvador who does not possess an EAD that is automatically extended in the FRN, or who wishes to apply for a new EAD despite having an older EAD that is automatically extended under the FRN, may file Form I-765 with the appropriate fee (or fee waiver request). If USCIS approves the application, we will issue an EAD with a Jan. 4, 2021, expiration date.

If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver, with your Form I-765.

You can check current processing times for all USCIS forms on the USCIS website.

Establishing Employment Eligibility

When completing Form I-9, Employment Eligibility Verification, as evidence of employment eligibility and identity, TPS beneficiaries may provide their employers with their unexpired EADs, facially expired EADs with individual notices that auto-extend those EADs, or facially expired EADs that are specified in the Nov. 4, 2019 FRN that have been auto-extended. Employees with a facially expired EAD that has been auto-extended may also use a copy of the FRN to show that their facially expired EAD has been extended through Jan. 4, 2021. As also noted in the FRN and on the USCIS I-9 Central web page, an individual may satisfy Form I-9 requirements for employment eligibility verification with any of the types of documents, or combination of documents, described on Form I-9. 

Form I-9 is mandatory for all employment in the United States, but its requirements do not apply until an employer actually hires an individual. Employees may present any documentation from the Form I-9 Lists of Acceptable Documents to their employer to show identity and employment eligibility. For purposes of Form I-9, an unexpired EAD or an EAD with a validity period that is auto-extended by the FRN or the individual notice are acceptable to prove both identity and eligibility to work. 

Employers can learn more about completing Form I-9 by visiting I-9 Central or calling the I-9 Contact Center:

  • For Employers: 888-464-4218
  • For Employees: 888-897-7781
  • TTY: 877-875-6028

Discrimination in Employment Verification

Employees can report an employer who rejects acceptable documents for I-9 purposes or one who refuses to accept an auto-extended EAD, and refer any discrimination-related questions, to the Immigrant and Employee Rights Section in the Department of Justice’s Civil Rights Division:

  • For Employees: 800-255-7688
  • For Employers: 800-255-8155
  • TTY: 202-616-5525 or 800-237-2515

Demonstrating Status to State Agencies

TPS beneficiaries who need to demonstrate their continued lawful status to obtain a driver’s license or other benefit to a state or local agency that uses USCIS’ Systematic Alien Verification for Entitlements (SAVE) Program must have alien or I-94 numbers to be verified through SAVE. These numbers can be found on various immigration documents beneficiaries may have received regarding their TPS.

DHS issues the following documents that satisfy this requirement:

  • Form I-797, Notice of Action, approval notice for I-821, Application for Temporary Protected Status, has an alien number;
  • Form I-766, Employment Authorization Document (EAD).  EADs issued to TPS recipients will indicate a category of A12 or C19 and have an alien number;
  • Form I-512, Authorization for Parole of an Alien into the United States, has an alien number. This form is issued to TPS beneficiaries who request travel authorization and who are allowed to travel outside the U.S. and return if authorized at the port of entry by Customs and Border Protection; and
  • Form I-94 Arrival/Departure Record, has an I-94 number. 

Beneficiaries may also have a final order from the Executive Office of Immigration Review granting TPS that may have either an alien or I-94 number.

For further information, see our web page on SAVE for Benefit Applicants.

If DHS has issued an FRN announcing the automatic extension of certain TPS-related documents, SAVE advises TPS beneficiaries to show the state or local agency a copy of the FRN documenting such extension with their most recently-issued immigration document. If you have an individual notice that automatically extends your TPS-related EAD, you may also show that notice and your EAD. 

While SAVE can verify when an individual has TPS, each agency’s procedures govern whether they will accept an auto-extended TPS-related document. You should present the agency with a copy of the relevant FRN showing the extension of TPS-related documents in addition to your recent TPS-related document with your alien or I-94 number. You should explain that SAVE will be able to verify the continuation of your TPS. You should ask the agency to initiate a SAVE query with your information and follow through with additional verification steps, if necessary, to get a final SAVE response showing the TPS. You can also ask the agency to look for SAVE notices or contact SAVE if they have any questions about your immigration status or auto-extension of TPS-related documents.

Dènye Nouvèl sou Plent Ramos Kont Nielsen an  (PDF, 379 KB)

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