How Foreign Nationals Unable to Return Home Safely May Legally Qualify for Temporary Protected Status
In some cases, non-citizens in the United States may try to obtain Temporary Protected Status (TPS). Implementation of TPS is the responsibility of the United States Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS). This is an option available to persons who are already in the United States. TPS is designed for individuals whose home country is not safe due to reasons such as armed conflict or natural disaster.
To qualify for TPS, you must meet the following criteria:
- Be a national of a designated country;
- Have had continuous physical presence in the United States since the effective date of the most recent TPS designation of the country;
- Have had continuous residence in the U.S. since an arbitrary date that is designated by DHS and varies according to the country;
- Be “admissible” as an immigrant under the relevant immigration laws.
Benefits and Restrictions of TPS
TPS typically lasts from six to 18 months. When the TPS period terminates, the non-citizen’s immigration status returns to what it was prior to the TPS. TPS is not an avenue to permanent resident status, often known as a green card. However, in certain instances, a TPS beneficiary may immigrate permanently under another immigration law if qualified.
If an individual qualifies for TPS status, he or she will be granted valid immigration status for a temporary period, will be eligible to obtain a work permit and will be allowed to work legally in the U.S. for the duration of the TPS, will be able to apply for travel authorization, and will be able to halt deportation and removal proceedings. TPS grantees, however, are ineligible for public benefits because they are not permanently residing in the U.S. according to immigration laws.
As of 2022, there are 12 countries that are certified by the government for special humanitarian treatment under immigration law. However, this list is subject to frequent changes, so you should check the USCIS website to verify whether a certain country is on the current list and how long it will stay on the list. (For example, the Department of Homeland Security recently extended the TPS designation for South Sudan through November 3, 2023.) It is entirely within the attorney general’s discretion as to whether a particular country will be designated as one whose nationals will qualify for TPS, and whether to extend the designation. Courts cannot review such decisions. TPS grantees are considered to be maintaining lawful status as non-immigrants.
After TPS Is Granted
If you have been granted TPS by an Immigration Judge or the Board of Immigration Appeals (BIA), you may request employment authorization by filing Form I-765, Application for Employment. Travel authorization can be applied for by filing Form I-131, Application for Travel Document. These authorizations can only be obtained after TPS has already been granted. Thus, it is futile to file these forms if an individual is currently in proceedings.
Once TPS is granted, if DHS extends a TPS designation beyond the initial period, the individual must re-register during each re-registration period to maintain TPS benefits. This applies consistently to all TPS beneficiaries. Re-registration can typically be completed online. In some cases, USCIS may accept a late re-registration application if the individual shows good cause for being late. A letter must accompany the late application setting forth the reasons for the delay.
Deferred Enforced Departure
A similar program to TPS is Deferred Enforced Departure (DED). It confers most of the same benefits, including prevention of deportation and permission to work in the U.S. The main difference is that the President personally grants DED based on concerns related to foreign affairs, while DHS has the authority to grant TPS.
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