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 Federal Register Notice (FRN), Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for Sudan, Nicaragua, Haiti, and El Salvador (83 FR 54764).

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will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under INA section 244(c)(3) or 8 CFR 244.14 because of individual ineligibility.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

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. 

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.  

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 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 other lawful immigration status or authorization to remain in the United States should leave the United States, or they may be subject to removal.  

Demonstrating Temporary Protective Status

As evidence of valid TPS, eligible beneficiaries of TPS Sudan and TPS Nicaragua may show either their most recently-issued Forms I-94, Entry/Departure Record, Forms I-797(Notice of Action), or Employment Authorization Document (EAD) (collectively “TPS-related documents”) bearing the end validity date of April 2, 2019. If they do not possess such a document, they may show their TPS-related documents, which have been specified in the Oct. 31, 2018 FRN as having been automatically extended through April 2, 2019, along with that FRN. 

As stated in that FRN, if the Ramos preliminary injunction continues in effect beyond April 2, 2019, DHS will publish a subsequent notice that will automatically extend for nine additional months (through Jan. 2, 2020) the TPS-related documents of eligible TPS beneficiaries from Haiti and El Salvador, as well as Sudan and Nicaragua, 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, provided that they properly re-registered for TPS during the most recent registration period for their country:

Country

Re-Registration Dates

Sudan

Oct. 11, 2017 - Dec. 11, 2017

Nicaragua

Dec. 15, 2017 - Feb. 13, 2018

Haiti

Jan. 18, 2018 - March 19, 2018

May 24, 2017 - July 24, 2017

El Salvador

Jan. 18, 2018 - March 19, 2018

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. 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 published on Oct. 31, 2018, DHS announced the automatic extension of EADs for TPS beneficiaries from Sudan and Nicaragua through April 2, 2019. Additionally, TPS beneficiaries from Sudan and Nicaragua who have EAD and re-registration applications pending will receive an EAD with a validity date ending April 2, 2019, if USCIS approves their re-registration and EAD applications.

At this time, unless TPS has been finally withdrawn from a beneficiary for ineligibility, current EADs for TPS beneficiaries who remain eligible under the designations of Haiti and El Salvador will remain in effect through the expiration dates on those EADs: 

Country

Expiration Date

Haiti

July 22, 2019

El Salvador

Sept. 9, 2019

Eligible beneficiaries of TPS Haiti and TPS El Salvador who do not have current EADs valid through July 22, 2019, or Sept. 9, 2019, respectively, may also file Form I-765 with the fee (or fee waiver request) to receive an EAD with one of those validity dates. To receive such an EAD, the individual must continue to be eligible for TPS, including meeting re-registration requirements. 

For affected TPS beneficiaries who have pending employment authorization applications, USCIS has issued individual notices automatically extending the expired EADs:

Country

Auto-Extended Through

Haiti

Jan. 17, 2019

El Salvador

March 4, 2019

Should DHS issue a subsequent FRN in March 2019, it will automatically extend EADs for eligible beneficiaries of TPS for all four countries through Jan. 2, 2020.  For more information, see the TPS Haiti and TPS El Salvador pages on the USCIS website.    

Any eligible beneficiary of TPS Sudan or TPS Nicaragua 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 an April 2, 2019, 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, 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 Oct. 31, 2018 FRN, along with a copy of the FRN, to prove they are eligible to work.

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. 

Eligible TPS beneficiaries under the designations for Haiti and El Salvador have EADs that are valid through July 22, 2019 and Sept. 9, 2019, respectively, or if they have pending employment authorization applications, they have individual letters that automatically extend their facially expired EADs through dates specified in those letters. Please see the country-specific TPS pages for Haiti and El Salvador for more information.

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

For individuals with TPS, employers must accept, if the individual presents it, an expired EAD and a copy of the Oct. 31, 2018, FRN as proof of continued authorization to work, provided the FRN specifically lists the expired EAD as one that is auto-extended. Employers may not, on the basis of citizenship, immigration status, or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents that relate to the employee, or specify certain documents over others during the I-9 or E-Verify processes, under the INA’s anti-discrimination provision. See 8 U.S.C. § 1324b.  

Employees can report 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. 

If DHS has issued an FRN announcing the automatic extension of certain TPS-related documents, SAVE advises TPS beneficiaries to show the state agency a copy of the FRN documenting such extension with their 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.

ADDITIONAL INFORMATION

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