Temporary Protected Status is a status available to individuals who are from countries suffering from armed conflicts, disasters, or other extraordinary conditions. Until 2003, the Attorney General was empowered to determine which countries were on the TPS list. But with the 2003 absorption of the former INS into the Department of Homeland Security, that power has now passed to the DHS Secretary. People with TPS are considered to be in legal status and can receive work authorization in the US until the situation in their home country has improved.
Who can declare TPS?
The Secretary of the Department of Homeland Security may grant foreign aliens temporary protected status, which provides the alien with an “employment authorized” endorsement for the duration of such status. The White House has the authority to recommend TPS as well.
Does TPS status affect an alien’s immigration status or vice versa?
If there are any removal procedures underway against aliens of a country on the TPS list, they should be frozen. Nothing authorizes the Secretary to deny TPS to an alien based on their immigration status. Furthermore, the alien, upon being granted TPS, is not required as a condition of such, to relinquish nonimmigrant or other status he may hold.
An application for TPS will have no affect on an application for asylum or any immigration benefit and vice versa and being in TPS will not improve one’s chances of getting permanent residency except to the extent it will toll any period of unlawful status that might prevent one from qualifying to adjust status (see below). Nor does denial of an immigration or asylum petition have any bearing on an application for TPS unless the basis for denial of the immigration or asylum petition is something that would bar TPS (see below).
Time spent in TPS status is considered a lawful status for purposes of adjusting to permanent residence. Note that time before and after TPS is granted which are not lawful will not be treated the same way.
What qualifies a country for TPS?
To qualify as a TPS nation, the Secretary of the Department of Homeland Security must assess the conditions in a country and find one of the following conditions:
- There is an ongoing, armed conflict within the country, and as a result of this conflict, returning to their home country would pose great risk to the personal safety of aliens who are nationals of said country.
- There has been an earthquake, flood, drought, epidemic, or other environmental or natural disaster in the state, resulting in “substantial,” but temporary or reparable, disruption of the living conditions in the affected area.
- A foreign state has officially requested TPS.
- There are extraordinary but temporary conditions in the foreign state that prevent aliens who are nationals of that country from returning, without endangering their personal safety, UNLESS the Secretary finds that allowing aliens to remain in the US is “contrary to the national interest of the United States.” (244(b)(1)(C))
For the TPS designation to take effect, the Secretary must publish notice of this designation, including the findings of their assessment of the foreign state, the date the designation takes effect, and an estimate of the number of foreign nationals from the state gaining TPS, in the Federal Register.
A list of TPS designated countries is maintained on the USCIS web site at www.uscis.gov.
How long does TPS remain in effect?
Upon publication of TPS designation, the status shall remain in effect for an initial period of not less than 6 months and not more than 18 months. However, no less than 60 days before TPS is set to expire, the Secretary of DHS shall review again the conditions in the foreign state and determine whether the conditions necessary to declare TPS remain in effect. The Secretary then must publish their new findings in the Federal Register again. If the Secretary finds that the situation has ameliorated and the conditions necessary to declare TPS no longer exist, they shall publish this in the Federal Register, and TPS will be revoked no less than 60 days after such a declaration. If the Secretary finds that conditions continue to warrant TPS for a foreign state, TPS shall be extended for a period of at least 6 months, but up to 18 months, at the discretion of the Secretary.
Which aliens are eligible for TPS?
Aliens who are nationals of a foreign state which has been declared TPS eligible, or aliens without nationality who last habitually resided in such a country, are eligible IF:
- The alien has been continuously physically present in the United States since the effective date of the most recent TPS declaration
- The alien has lived continuously in the United States since such a time as the Secretary of DHS may decide
- The alien is admissible as an immigrant
- The alien registers for TPS during a registration period of no less than 180 days.
The Secretary may waive immigration barriers when assigning TPS to foreign aliens in an effort to assure family unity, or when it is in the public’s best interest. However, the Secretary may not waive the following:
- Aliens with drug offenses for anything other than simple possession of 30 grams or less of marijuana
- Aliens who took part in Nazi persecutions, or any participants in genocide
- Aliens that have been convicted of a felony or 2 or more misdemeanors committed since they have been in the United States or someone subject to various criminal and security related bars to asylum.
USCIS recently also specifically commented on a problem where TPS cases were denied for people who were guilty of two or more traffic infractions. In response to the Haitian earthquake, USCIS issued a memorandum stating that if the ONLY basis for denying a case is a conviction for two or more “traffic infractions” under NY penal laws, the case should be approved. Presumably, the policy will apply to other states which might have similar rules.
How do you apply for TPS?
Applicants must submit the following:
- Form I-821 Application for Temporary Protected Status
- Form I-765 Application for Employment Authorization (even if the applicant is not seeking a TPS-related Employment Authorization Document)
- Documents to prove identity and nationality.
- Documents to prove date of entry into the United States
- Documents to prove residence in the United States
- Two passport-style photographs of the applicant
- Filing fees
Copies of documents should be submitted along with a certified translation if the document language is not English. Note that USCIS reserves the right to request submission of original documents at a later time. Also note that the documents listed above need not be submitted with re-registration or renewal applications (though USCIS could still request additional information or documentation).
Applicants will also be required to submit biometrics unless an applicant is under 14 years of age and not applying for an Employment Authorization Document.
What documents can be used to prove identity and nationality?
Applicants may submit any of the following:
- Passport;
- Birth certificate accompanied by photo identification
- Any national identity document from the applicant’s country or origin bearing a photo and/or fingerprint.
What documents can be used to prove date of entry into the United States?
Any of the following:
- Passport;
- I-94 Arrival/Departure Record; or
- Employment records (e.g. paystubs, W-2 Forms, tax returns, employer letters, bank records, etc.);
- Rent receipts, utility bills, other receipts, letters from companies showing dates services were received;
- School records (letters, report cards, etc.) showing the name of the school and periods of school attendance;
- Hospital or medical records showing the name of the medical facility or physician and the date of the treatment or hospitalization.
- Attestations by churches, unions, or other organizations to your residence identifying you by name. The attestation must be signed by an official whose title is shown, show dates of membership, state the address where you resided during the membership period, include the seal of the organization, establish how the author knows the applicant and showing the origin of the information to which the writer is attesting.
- Additional documents may include money order receives for money sent in or out of the country, passport entries, birth certificates of children born in the United States; dated bank transactions, correspondence between the applicant and another person or organization; US Social Security card, Selective Service card; automobile license receipts, title vehicle registration, etc.; deeds, mortgages, contracts to which the applicant has been a party; tax receipts; insurance policies; receipts; letters; or any other relevant document.
What documents can be used to prove residence in the United States?
- Employment records (e.g. paystubs, W-2 Forms, tax returns, employer letters, bank records, etc.);
- Rent receipts, utility bills, other receipts, letters from companies showing dates services were received;
- School records (letters, report cards, etc.) showing the name of the school and periods of school attendance;
- Hospital or medical records showing the name of the medical facility or physician and the date of the treatment or hospitalization.
- Attestations by churches, unions, or other organizations to your residence identifying you by name. The attestation must be signed by an official whose title is shown, show dates of membership, state the address where you resided during the membership period, include the seal of the organization, establish how the author knows the applicant and showing the origin of the information to which the writer is attesting.
- Additional documents may include money order receives for money sent in or out of the country, passport entries, birth certificates of children born in the United States; dated bank transactions, correspondence between the applicant and another person or organization; US Social Security card, Selective Service card; automobile license receipts, title vehicle registration, etc.; deeds, mortgages, contracts to which the applicant has been a party; tax receipts; insurance policies; receipts; letters; or any other relevant document.
What if documents are not available?
If documents are not available, an applicant can provide USCIS with an affidavit showing proof of one’s unsuccessful efforts to obtain the documents explaining why one cannot obtain the documents from one’s consulate and affirming that one is a national of the designated state. USCIS has the discretion to request a statement from the issuing authority certifying the document is not available. Applicants may also provide affidavits to prove date of entry and residence.
What is the amount of the filing fee to be submitted?
- $50 application fee for the Form I-821
- $85 fee for biometric services (fingerprints, photographs, signatures, etc.)
- $380 fee for Form I-765 Application for Employment Authorization Document.
Note the following: Applicants for EADs over 65 and under 14 do not need to pay the I-765 fee and those not requesting employment authorization need not pay the fee (though the I-765 form must still be submitted). Also note that children under 14 do not need to pay the biometrics fee unless they are applying for an EAD.
Any of these three fees may be waived if an applicant submits a fee waiver request in the form of a written statement explaining why the applicant is eligible for TPS and why the applicant is unable to pay the required fees.
Also, USCIS fees change frequently so always double check the USCIS.gov web site for the latest information.
Where is the application submitted?
The filing address for the TPS package varies from nationality to nationality. Applicants should consult the Federal Register notice announcing the particular country’s TPS in order to see where to file.
How can a person’s TPS status be Withdrawn?
The Secretary may withdraw TPS if:
- The Alien(s) were not in fact eligible for TPS under its prescriptions
- The Alien has not remained continuously physically present in the United States since the date that the alien was granted TPS (with the exception of emergencies and unintentional absences).
- The Alien fails, without good cause, to register with the Secretary of DHS annually, as specified by the Secretary.
What is a person wants to travel?
An applicant granted TPS may apply for an advance parole travel document on Form I-131. The travel document will have an expiration date no later than the period or time the applicant’s country is designated for TPS. Note as well that applicants who have overstayed can face reentry bars if they leave the US.
What if an applicant’s address changes after being granted TPS?
If an applicant moves, he or she must file Form AR-11 either by mail or at www.uscis.gov. Simply notifying the US Postal Service of the address change does not satisfy immigration requirements.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.