Update on Ramos v. Nielsen

On Sept. 14, 2020, in Ramos et al. v. Wolf et al., No. 18-16981 (9th Cir., Sept. 14, 2020) (PDF, TK MB) (PDF, 374.01 KB), a panel of the U.S. Court of Appeals for the Ninth Circuit vacated the district court’s injunction prohibiting DHS from terminating Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua and Sudan. However, because the appellate court has not issued its directive to the district court to make that ruling effective, the injunction remains in place at this time. On Dec. 9, 2020, DHS published another Federal Register notice (FRN) announcing that beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua and Sudan will retain their TPS and that their TPS-related documentation will continue through Oct. 4, 2021, while the preliminary injunction in Ramos remains in effect; that beneficiaries under the Haiti TPS designation will also retain TPS while the preliminary injunction in the Saget et al. v. Trump et al., No. 18-cv-1599 (E.D.N.Y. April 11, 2019) remains effective; and that beneficiaries of TPS for Honduras and Nepal will retain TPS while the stay of proceedings in Bhattarai et al. v. Nielsen et al., No. 19-cv-00731 (N.D. Cal. March 12, 2019) continues, provided that the TPS of the affected beneficiaries in these lawsuits is not withdrawn because of individual ineligibility under the TPS laws. If necessary, DHS will publish future FRNs to continue its compliance with the court orders.

For additional information, please see the Dec. 9, 2020, FRN, and specific TPS country pages on the USCIS website.

Current Status

The Oct. 3, 2018, preliminary injunction is currently in effect. As a result of the injunction, the TPS designations of El Salvador, Haiti, Nicaragua and Sudan remain in effect.

To comply with the court’s injunction, on Dec. 9, 2020, DHS posted an FRN that automatically extends through Oct. 4, 2021, the following documents described in the notice: Employment Authorization Documents (EADs); Forms I-797, Notice of Action (Approval Notice); and Forms I-94, Arrival/Departure Record, (collectively, “TPS-related documentation”) for eligible, affected beneficiaries of TPS for El Salvador, Haiti, Nicaragua and Sudan. DHS will issue new EADs with an Oct. 4, 2021, expiration date to eligible beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua and Sudan if they request an EAD and USCIS approves it.

Beneficiaries will maintain their status while the injunction remains in place, provided they 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 webpage and under the country-specific TPS webpages. For questions about travel for TPS beneficiaries, please see the TPS Travel page.

In Case of Reversal

If a superseding final, non-appealable court order and implementing Federal Register notice, if one is warranted, permits the termination of the TPS designations of El Salvador, Nicaragua and Sudan to go into effect, DHS may terminate the validity of relevant TPS-related documentation before the end validity date announced in any current or subsequent Federal Register notice. Any such terminations of TPS-related documentation for affected TPS beneficiaries will go into effect no earlier than 120 days from the effective date of any superseding, final, non-appealable judicial order that permits the implementation of the termination of TPS for Nicaragua and Sudan, and no earlier than 365 days from the effective date of any superseding, final, non-appealable judicial order that permits the implementation of the termination of TPS for El Salvador, in order to allow for an orderly transition for affected TPS beneficiaries.

Due to the preliminary injunction issued in Saget v. Trump, also enjoining the termination of TPS for Haiti, the government must prevail in its challenges to both the Ramos preliminary injunction and the Saget preliminary injunction in order for TPS for Haiti to terminate. In the event that the government does prevail in both cases, the DHS secretary’s determination to terminate TPS for Haiti will take effect no earlier than 120 days from the issuance of the later of the two appellate mandates to the District Court in order to allow for an orderly transition. (Note: Should the government move to vacate the Bhattarai order to stay proceedings in light of an appellate decision affirming the preliminary injunction in Ramos that suggests a basis on which to distinguish the determinations to terminate the TPS designations for Honduras and Nepal from the TPS terminations at issue in Ramos, TPS will remain in effect for Honduras and Nepal for at least 180 days following an order of the District Court vacating the stay in proceedings.)

Depending on court orders in the lawsuits, USCIS will inform TPS beneficiaries when any of these orderly transition periods for beneficiaries of TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua or Sudan will begin. These transition periods will provide time for current TPS beneficiaries who do not have another lawful immigration status or authorization to remain in the United States to leave the United States, or they will be subject to removal.

Demonstrating Temporary Protected Status

As evidence of valid TPS, eligible beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador may show their most recently issued TPS-related documents, which have been specified in the Nov. 4, 2019 FRN as having been automatically extended through Oct. 4, 2021, along with that FRN (PDF) (PDF, 374.01 KB).

DHS has automatically extended through Oct. 4, 2021, the validity periods of the following Forms I‑94 and Forms I-797, Notice of Action (Approval Notice), previously issued to eligible beneficiaries granted TPS under the designations for Sudan, Nicaragua, Haiti, and El Salvador:

However, the extension of these validity periods applies only if the eligible TPS beneficiary properly filed for TPS re-registration during one of the most recent DHS-announced registration periods:

• Nicaragua: May 16-July 15, 2016 or Dec. 15, 2017-Feb. 13, 2018;
• Sudan: Jan. 25-March. 25, 2016 or Oct. 11-Dec. 11, 2017;
• El Salvador: July 8-Sept. 6, 2016 or Jan. 18-Mar. 19, 2018;
• Haiti: Aug. 25-Oct. 26, 2015, May 24-July 24, 2017, or Jan. 18-Mar. 19, 2018.

If the Ramos preliminary injunction continues in effect beyond Oct. 4, 2021, DHS will continue to issue notices that will automatically extend TPS-related documentation for all affected beneficiaries under the TPS designations for El Salvador, Nicaragua and Sudan, and for affected beneficiaries under the TPS designation for Haiti so long as either the Ramos or Saget preliminary injunctions remain in place; or by other order of the courts.

Current End Date

TPS beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador will maintain valid TPS in the United States as 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. Beneficiaries of TPS for Haiti will also retain TPS as long as the Saget court order enjoining the termination of TPS for Haiti remains in effect. 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. If a court order permits 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 at this time, provided that they properly re-registered for TPS during one of the re-registration periods for their country listed below. If you properly re-registered during the following re-registration periods for your country, then you do not need to submit new biometrics, unless USCIS specifically sent you a notice informing you to attend a biometrics collection appointment.

Beneficiaries who did not re-register during at least one of the periods described above for their country 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).

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. USCIS may consider this explanation for purposes of meeting the “good cause” exception for failing to re-register on time. 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 procedures announced for re-registration for their country during at least one of the time periods listed in the table above 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 (PDF) published on Nov. 4, 2019, DHS announced the automatic extension of EADs for TPS beneficiaries under the designations for Sudan, Nicaragua, Haiti, and El Salvador through Oct. 4, 2021, with the category codes “A-12” or “C-19” and one of the expiration dates shown below:

TPS beneficiaries with EADs that are auto-extended do not need to apply for a new EAD, but they may if they choose to do so. Additionally, TPS beneficiaries from all four countries who have EAD and re-registration applications pending will receive an EAD with a validity date ending Oct. 4, 2021, if USCIS approves their re-registration and EAD applications.

Any eligible beneficiary under the TPS designations for Sudan, Nicaragua, Haiti or El Salvador 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 a Oct. 4, 2021, expiration date.

If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver, with your Form I-765.

Establishing Employment Eligibility

TPS beneficiaries may present their unexpired EADs or facially expired EADs that have been automatically extended through Oct. 4, 2021, as specified in the Dec. 9, 2020, FRN to their employer as evidence of employment eligibility and identity when completing Form I-9, Employment Eligibility Verification. Employees may show this Federal Register notice to their employer, which provides instructions on how employers must complete Form I-9 and indicates that their facially expired EAD has been automatically extended through Oct. 4, 2021.

As also noted in the FRN and on the USCIS I-9 Central web page, an individual may satisfy Form I-9 requirements for employment eligibility verification with any of the types of documents, or combination of documents, described on Form I-9. 

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. 

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

Employees can report an employer who rejects acceptable documents for I-9 purposes or one who refuses to accept an auto-extended EAD, and refer any 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 other benefit to a state or local agency that uses USCIS’ Systematic Alien Verification for Entitlements (SAVE) Program must have alien or I-94 numbers to be verified through SAVE. These numbers can be found on various immigration documents beneficiaries 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.

For further information, see our web page on SAVE for Benefit Applicants.

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

Dènye Nouvèl sou Plent Ramos Kont Nielsen an  (PDF, 379.44 KB)