Immigration Options After Termination of TPS

By Nancy Miller and Michael Bhotiwihok

On January 8, 2018, the Department of Homeland Security (“DHS”) announced the termination of Temporary Protected Status (“TPS”) designation for El Salvador with a delayed effective date of 18 months or TPS ending on September 9, 2019. Last year, DHS also terminated TPS designation for Haiti, Nicaragua, and Sudan. While the recent DHS decision was not unanticipated, it is a troubling sign from the Trump Administration that TPS designation for other countries may come to an end.

Termination of TPS will affect an enormous number of people living in the United States by separating families, disrupting businesses, and forcing some to return to their home countries where conditions are ruinous.

Beneficiaries previously granted TPS must re-register during the re-registration periods to maintain TPS benefits like employment authorization. TPS beneficiaries who missed re-registering during their country’s re-registration period may file late with good cause.

One option is for TPS beneficiaries residing in the Ninth and Sixth Circuits, where the respective United States Courts of Appeals have held that a grant of TPS is considered an admission for INA Section 245(a) purposes for adjustment of status applicants. TPS beneficiaries who entered the United States without inspection are now considered admitted and qualify for adjustment of status under INA Section 245(a) provided they have an independent means of immigrating. An independent means may include United States citizen spouse or USC son or daughter over the age of 21.

The Sixth and Ninth Circuits willingness to recognize TPS as an admission is significant, because residents in the Sixth and Ninth Circuits who were granted TPS now may apply for a green card in the United States. The Sixth and Ninth Circuit’s large geographic reach includes a large number TPS beneficiaries. The Ninth Circuit encompasses California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. The Sixth Circuit includes Tennessee, Ohio, Michigan, and Kentucky. Further, TPS beneficiaries do not have to leave the United States and consular process through a United States Embassy or Consulate. Instead, families are kept together and lives continue in the United States.

In addition, TPS beneficiaries should consider alternative routes to obtaining a green card. The Provisional Unlawful Presence Waiver (“Provisional Waiver”) allows beneficiaries of immigrant visa petitions who were not inspected and admitted to the United States to apply for a waiver of the ten-year bar that will be triggered by departing the country to apply for an immigrant visa abroad. The Provisional Waiver allows applicants to know whether their waiver is approved or not before departing the United States. Thus, the uncertainty and risks of leaving the United States to consular process are alleviated. The Provisional Waiver decreases the time that families are separated and keeps families together during the consular processing of an immigrant visa.

Another potential option is Cancellation of Removal for Non-Permanent Residents. This allows qualified individuals to obtain a green card if they have lived in the United States for at least ten years, have good moral character, and can show that their U.S. citizen, or Lawful Permanent Resident parent, spouse or child would suffer exceptional and extremely unusual hardship if the applicant were forced to leave the United States. Applicants are eligible to obtain employment authorization as soon as their application is filed.

An additional option exists through the Nicaraguan Adjustment and Central American Relief Act (NACARA) which provides various forms of immigration benefits and relief from deportation to certain individuals from Nicaragua, Cuba, and El Salvador and Guatemala. Individuals from El Salvador may apply before an Immigration Judge for suspension of deportation or cancellation of removal and adjust his or her status to that of a lawful permanent resident. Salvadorans with TPS from the 1991 designation, provided an asylum application was not previously filed, can only apply for NACARA before an immigration judge. An applicant must establish physical presence for a continuous period of seven years preceding the application’s filing, good moral character, and extreme hardship to himself or herself, or his or her spouse, parent, or child who is a United States citizen or lawful permanent resident, and that a favorable exercise of discretion is warranted.

TPS beneficiaries should make good use of this transition time. They should consult with an experienced and knowledgeable immigration attorney to assess their immigration options for ways to lawfully remain in the United States.