What is Temporary Protected Status?
Temporary Protected Status (TPS) is a temporary immigration benefit available to certain nationals of countries that are designated by the Secretary of Homeland Security for TPS. A country may be designated for TPS when the Secretary of Homeland Security determines that the conditions in the country render the country unable to handle the return of its nationals.
Although TPS is not a nonimmigrant or immigrant status, individuals on TPS may be eligible for employment authorization. Additionally, an individual on TPS may simultaneously hold a nonimmigrant status and may also seek adjustment of status or any other immigration benefit for which the individual is eligible.
Rules for Eligibility for Temporary Protected Status
First, in order to be eligible to register for TPS benefits, an individual must be a national of, or an individual without nationality who last habitually resided in, a country designated for TPS. In general, if an individual is admitted into the United States as the national of a country that is not designated for TPS, the individual may not rely upon having the nationality of another country that is designated for TPS in order to qualify for TPS (see Genco Op. No. 92-34 (INS), 1992 WL 136973). The Administrative Appeals Office (AAO) has generally interpreted the laws as only permitting individuals to rely upon their operative nationality in applying for TPS benefits.
Even if an individual meets the nationality requirements for applying for TPS benefits, he or she may not register at any time. Rather, an individual may only apply for TPS during his or her TPS designated country’s open initial registration period or re-registration period. The individual must have been physically present in the United States since the effective date of the most recent designation of his or her country for TPS. “Brief, casual, and innocent” departures do not break continuous physical presence. In order to be eligible to register for TPS during a TPS country’s late initial filing period, the individual must be a nonimmigrant, granted voluntary departure, or granted relief from removal; have a pending application for change of status, adjustment of status, asylum, voluntary departure, or relief from removal; have been a parolee or had a pending request for re-parole; or be the spouse of an individual who is eligible for TPS. The unmarried child of an individual eligible for TPS at the time of the TPS designated country’s initial designation for TPS or re-designation for TPS is eligible even if the application for TPS is filed late.
If an immigration judge determines that an individual in removal proceedings is eligible for TPS, the immigration judge may close proceedings and direct the individual to apply for TPS.
Ineligibility Grounds for Temporary Protected Status
The following are grounds that will render an individual ineligible to apply for TPS or unable to maintain TPS benefits:
- Having been convicted of a felony or two or more misdemeanors in the United States;
- Being found to be inadmissible to the United States under section 212(a) of the INA (but not section 212(a)(5) or (7)), including non-waivable or criminal grounds;
- Being subject to a mandatory bar to eligibility for asylum;
- Failure to meet the continuous physical presence and continuous presence requirements;
- Failure to meet initial or late initial TPS requirements; or
- Failure to re-register for TPS benefits without good cause.
An individual considering applying for TPS should consult with an experienced immigration attorney for an assessment of whether any grounds apply that would call into question the individual’s eligibility for TPS benefits.
Applying for Temporary Protected Status
There are three forms that are required in every TPS initial registration or re-registration:
- Form I-821, Application for Temporary Protected Status
- Form I-765, Application for Employment Authorization
- Biometrics services fee (except for applicants under the age of 14) regardless of whether biometrics need to be taken (re-registrants will often not need to have biometrics re-taken)
Regardless of whether the TPS applicant is seeking employment authorization, he or she must file the Form I-765. However, if the applicant for TPS benefits is not seeking employment authorization, he or she may file the Form I-765 without fee.
Because inadmissible aliens are ineligible for TPS, an applicant who is inadmissible under a waivable ground of inadmissibility must file the Form I-601, Application for Waiver of Grounds of Inadmissibility, in order to seek a waiver of inadmissibility. The Form I-601 has a filing fee as well. It is important to note that if a waiver of inadmissibility is granted for an applicant for TPS benefits, the waiver will only apply to the TPS application. This means if the TPS beneficiary subsequently seeks a different immigration benefit for which his or her inadmissibility ground would apply, the TPS beneficiary would have to have the file for waiver of inadmissibility for that purpose.
If the applicant is unable to pay the filing fee for any of the forms associated with the TPS benefits application packet, he or she may seek a fee waiver by filing the Form I-912, Application for Fee Waiver, or by otherwise submitting a written request. The fee waiver application must be supported by evidence of the applicant’s inability to pay. Applicants seeking fee waivers are advised to apply for TPS benefits as soon as possible during the initial registration or the re-registration period. This is because a denial of a fee waiver request will require the applicant to resubmit the TPS benefits application packet with the requisite fees. Such applicants will most likely be eligible to re-file slightly after the registration or re-registration period, if necessary, but only if the USCIS determines there is “good cause” for the late filing. Such applicants are advised to re-file for TPS benefits within 45 days of the fee waiver denial.
The TPS application packet must be supported by evidence establishing the applicant’s eligibility for TPS benefits in accordance with the form instructions.
Adjudication of Temporary Protected Status Application
For applicants for an initial grant of TPS, the USCIS will schedule an appointment for the applicant at an Application Support Center for biometrics. This step may be skipped in most re-registration cases where the previously-taken biometrics are reusable.
If the USCIS requires more evidence, it may send the applicant a Request for Evidence or a Notice of Intent to Deny. It is crucial for the applicant to respond expeditiously to such a request in order to remedy the insufficiency in the application.
If the USCIS denies the TPS application, the applicant may file an appeal with the USCIS’s Administrative Appeals Office within 30 days of the denial of the application. The appeal must be filed on a Form I-290B with fee. However, the applicant may seek a fee waiver by filing a Form I-912 in lieu of the fee. Applicants who are denied TPS on certain criminal or security grounds that are non-waivable for TPS purposes may be ineligible to appeal, although such applicants may seek review from an immigration judge instead.
If TPS is granted, the applicant will not only be approved for TPS, but will also become employment authorized if he or she sought employment authorization, and was approved for such authorization, in applying for TPS.
Maintenance of Temporary Protected Status
An individual with TPS benefits must re-register for TPS during each re-registration period. Failure to re-register for TPS will render an individual ineligible to maintain TPS. TPS beneficiaries must notify the USCIS of any change of address. TPS beneficiaries must also procure approval to travel in the form of a grant of advance parole. A TPS beneficiary who is granted advance parole and returns under the terms of such advance parole will be permitted to return to the United States in TPS status rather than as a parolee.
An interesting situation arises when a TPS beneficiary is authorized for employment due to TPS but is simultaneously maintaining a nonimmigrant status that restricts employment. Under current USCIS policy, the individual must follow all of the rules of his or her nonimmigrant status to maintain such status (USCIS, FAQs: Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306) (Sep. 3, 2015)). As a result, for example, this means that an individual on both F1 student status and on TPS cannot maintain F1 student status if he or she uses the TPS employment authorization to engage in employment that would violate F1 student status. In such a case, the individual would maintain his or her TPS but would have violated the F1 status. An individual simultaneously maintaining TPS and status as a nonimmigrant should consult with an experienced immigration attorney for guidance on how to maintain both statuses.
Benefits of Temporary Protected Status
An individual maintaining TPS is shielded from deportation. Furthermore, most individuals who are granted TPS will also be eligible for employment authorization if sought in the course of a TPS application. TPS beneficiaries may apply for adjustment of status or change of status, and may be granted TPS even if holding a separate nonimmigrant status. However, a waiver of inadmissibility for TPS only cures inadmissibility for purpose of the TPS application. TPS beneficiaries may apply for asylum, although the grant of TPS is not an element of proof for eligibility for asylum.
Temporary Treatment Benefits
If an individual who would be eligible for TPS seeks benefits outside of the registration period applicable to his or her country, he or she may be eligible instead for temporary treatment benefits. If granted, temporary treatment benefits persist until a final determination of the individual’s eligibility for TPS is made. The denial of an application for temporary treatment benefits does not prejudice a later application for TPS.
TPS is an enticing benefit for eligible individuals, offering legal status in the United States, relief from removal, employment authorization, and the ability to maintain a nonimmigrant status or change or adjust status. It is important to remember, however, that TPS is a temporary benefit that may only last as long as the country in question is designated for TPS. An individual seeking TPS or who is maintaining TPS should consult with an experienced immigration attorney for individualized guidance.