Temporary Protected Status (TPS) 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 individual based on their immigration status. Furthermore, the individual, upon being granted TPS, is not required as a condition of such, to relinquish nonimmigrant or other status he or she may hold.

An application for TPS will have no affect on an application for asylum or any immigration benefit, 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). 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). Again, TPS does not lead to permanent resident status (green card status).

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 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 http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status.

How long does TPS remain in effect?

Upon publication of TPS designation, the status shall remain in effect for an initial period between 6 and 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.

Who is eligible for TPS?

  • Foreign nationals whose home country has been declared TPS are eligible. Also, individuals without nationality who last habitually resided in such a country are eligible if:
  • They have been continuously physically present in the United States since the effective date of the most recent TPS declaration
  • They have lived continuously in the United States since such a time as the Secretary of DHS may decide
  • They are admissible as an immigrant
  • They register 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 will not wave immigration barriers if the applicant:

  • Has been convicted of a felony or at least two misdemeanors committed within the United States
  • Qualifies as a “persecutor” or is otherwise subject to one of the bars to asylum
  • Is a member of one of several criminal-related or terrorism-related grounds of inadmissibility (Nazism, Al-Qaeda, etc.)

 

How does one apply for TPS?

Applicants must submit the following:

 
Note that USCIS reserves the right to request submission of original documents at a later time.

What documents can be used to prove identity and nationality?

There are three tiers of identity and nationality documentation.

1. Primary Evidence:

  • Copy of passport
  • Copy of birth certificate AND photo identification
  • Any national identity document bearing the applicant’s photograph and/or fingerprint hat has been issued by the country, including such documents issued by the country’s Embassy or Consulate in the United States (e.g. national ID card, naturalization certificate)

 
2. No Primary Evidence:

Applicants lacking the items listed under primary evidence can submit an affidavit with:

  • Proof of unsuccessful efforts to obtain primary evidence
  • A thorough explanation as to why the consular process was unavailable, and affirmation of foreign national status

 
USCIS will conduct a follow-up interview regarding the applicant’s identity and nationality. At that time, applicants may submit additional evidence if available.

3. Secondary Evidence:

  • Nationality documentation, such as a naturalization certificate, even if it lacks a photograph and/or fingerprint
  • Baptismal certificates indicating individual nationality or the nationality of a parent
  • Copies of school or medical records
  • Copies of other immigration documents that reference nationality and identity
  • Affidavits from friends or family members who have close personal knowledge of the date and place of the individual’s birth and his or her parents’ nationality. The person making the affidavit should include as much information about their relationship with the applicant as possible

 
What documents can be used to prove date of entry into the United States?

  • Copy of passport
  • I-94 Arrival/Departure Record
  • Copies of any documents specified in the ‘Continuous Residing Evidence’ section below

 
What documents can be used to prove residence in the United States?

  • Employment Records
  • Rent receipts, utility bills, receipts, or letters from companies
  • School records from the schools the applicant or the applicant’s children have attended in the U.S.
  • Hospital or medical records concerning treatment or hospitalization the applicant or the applicant’s children
  • Attestations by church, union, or other organization officials who know the applicant and where he or she has been residing

 

What are the application fees?

USCIS provides a helpful table concerning fees for first time TPS applicants (current as of March 2014):

Applicant Age Form I-821 Fee Biometrics Fee Requesting EAD Form I-765 Total
under 14 $50 $0 Yes $0 $50
under 14 $50 $0 No
(You still must file the I-765)		 $0 $50
14-65 (inclusive) $50 $85 Yes $380 $515
14-65 (inclusive) $50 $85 No
(You still must file the I-765)		 $0 $135
66+ $50 $85 Yes $0 $135
66+ $50 $85 No
(You still must file the I-765)		 $0 $135

Those renewing their TPS must include:

 

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 or the USCIS web page noted above.

How can a person’s TPS status be withdrawn?

The Secretary may withdraw TPS if:

  • The individual is found to be ineligible for TPS
  • The individual has not remained continuously physically present in the United States since the date TPS was granted (with the exception of emergencies and unintentional absences).
  • The individual fails to register with the Secretary of DHS annually (barring some outstanding obstacle)

 

What if a person wants to travel?

Individuals granted TPS must apply for travel authorization in the form of an advance parole document on Form I-131. The travel document will have an expiration date no later than the period the applicant’s country is designated for TPS.

What if an applicant’s address changes after being granted TPS?

Notify USCIS immediately at http://www.uscis.gov/addresschange.

 

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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.

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