Update on Ramos v. Nielsen

Impact of Ramos v. Nielsen Court Order Stopping TPS Terminations

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. DHS may not terminate 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. On Oct. 31, 2018, DHS published a Federal Register Notice (FRN), Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for Sudan, Nicaragua, Haiti, and El Salvador (83 FR 54764). On March 1, 2019, DHS published a second FRN, (FR 2019-03783).

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will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under INA section 244(c)(3) or 8 CFR 244.14 because of individual ineligibility.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 preliminary injunction is currently in effect. As required by the order, the TPS designations of Sudan, Nicaragua, Haiti, and El Salvador will remain in effect so long as the court’s Oct. 3, 2018 preliminary injunction remains in effect. To comply with the court’s injunction, on March 1, 2019, DHS published a second FRN that automatically extended through Jan. 2, 2020, 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 Documentation”) 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. There is currently a court-ordered stay on all proceedings at the district court level during the pendency of this appeal. 

TPS beneficiaries will maintain their status, but they must 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 these four countries may take effect, unless the final court order places other limitations on the terminations. If one or more of the termination decisions can take effect, DHS will allow for an orderly transition period of at least 120 days from the final ruling lifting the injunction regarding the affected TPS country or countries before implementing and enforcing the TPS termination determinations. During the transition period, current TPS beneficiaries who do not have another lawful immigration status or authorization to remain in the United States must leave the United States, or they will be subject to removal.  

Demonstrating Temporary Protective 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 bearing the end validity date of April 2, 2019. If they do not possess either of those documents, they may show their TPS-Related Documents, which have been specified in the Mar. 1, 2019 FRN as having been automatically extended through Jan. 2, 2020, along with that FRN. You can find a list of those documents under the sections entitled “Automatic Extension of EADs” and “Automatic Extensions of Forms I-94 (Arrival/Departure Record) and Forms I-797 (Notice of Action (Approval Notices)).”

As stated in that FRN, if the Ramos preliminary injunction continues in effect beyond Jan. 2, 2020, DHS will publish a subsequent notice that will automatically extend for nine additional months the TPS-related documents of eligible TPS beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador, and will continue publishing similar notices in nine-month intervals, if needed.

Current End Date

TPS beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador will maintain valid TPS in the United States so 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. 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. Should a court order permit 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 the most recent registration period for their country. 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 has 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 the last period 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). This includes beneficiaries under TPS Haiti who did not re-register after the May 2017 six-month extension of Haiti’s designation.

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 will 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 most recently announced re-registration procedures for their country 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 March 1, 2019, DHS announced the automatic extension of EADs for TPS beneficiaries under the designations for Sudan, Nicaragua, Haiti, and El Salvador through Jan. 2, 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. 2, 2020, if USCIS approves their re-registration and EAD applications.

Should DHS publish a subsequent FRN before Jan. 2, 2020, it will automatically extend EADs for eligible beneficiaries of TPS for all four countries at that time.     

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. 2, 2020, expiration date.

TPS beneficiaries may be eligible for a fee waiver under 8 CFR 103.7(c). If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver, or submit a written request, and submit it and any required evidence of your inability to pay the filing fees 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 March 1, 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 the new EAD expiration date. 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

TPS beneficiaries who need to demonstrate their continued lawful status to obtain a driver’s license or to a state or local agency that uses USCIS’ SAVE Program to determine eligibility for other benefits must have alien or I-94 numbers. These can be found on various immigration documents they may have received regarding their TPS.    

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 to a state agency that uses USCIS’ SAVE Program must have alien or I-94 numbers. These can be found on various immigration documents they 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.

Further information on SAVE for Benefit Applicants can be found here.

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 documentation 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 documentation.

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