Biden Extends and Redesignates Temporary Protected Status (TPS) to Venezuelans in the U.S.

October 05, 2023
Minsky, McCormick & Hallagan, P.C.

On October 3, 2023, the Biden administration announced it is extending and redesignating Venezuela for Temporary Protected Status (TPS). This extension is valid until September 10, 2025, for Venezuelan citizens with already approved TPS or who have a pending TPS initial application that has not yet been adjudicated by the United States Citizenship and Immigration Services (USCIS). The redesignation further allows Venezuelan citizens (and individuals with no nationality who last habitually resided in Venezuela) who have been in the U.S. since July 31, 2023, to now seek TPS for the first time if they can demonstrate that they have been continuously physically present in the United States since October 3, 2023. The redesignation for initial Venezuelan TPS applicants is valid until April 2, 2025.

What is Temporary Protected Status?

The Department of Homeland Security (DHS) can designate a country for TPS if it believes that conditions in that country make it too dangerous to return there. Some common reasons for countries to receive TPS are natural disasters, war, or other widespread conflict. In this case, DHS Secretary Alejandro N. Mayorkas extended TPS for Venezuela because of extraordinary and temporary conditions that continue to prevent Venezuelan nationals from returning safely. As the name suggests, TPS is temporary. It is generally granted for periods of twelve (12) to eighteen (18) months, at which point DHS decides whether or not to renew TPS for that country. Since TPS is based on conditions in the home country, if DHS believes that conditions have improved, it can choose not to renew TPS for that country.

What are the basic requirements to obtain Temporary Protected Status?

In order to obtain TPS, you must meet the following basic conditions:

  • Be a citizen or national of a country that has been designated for TPS.
  • File your TPS application within a certain required time frame, called either the re-registration or initial registration period. (The re-registration period for applicants who currently have TPS or who have a pending TPS initial application under Venezuela TPS begins on January 10, 2024, through March 10, 2024. The initial registration period for new applicants under Venezuela TPS redesignation begins on October 3, 2023, through April 2, 2025.)
  • Have been continuously physically present in the United States since a certain date. (In the case of Venezuela, the date is now October 3, 2023, for new applicants.)
  • You cannot have been convicted of certain crimes.
  • You must meet certain national security requirements.

Most notably, TPS is available to individuals who are in the U.S. both without any lawful status and also those who are maintaining temporary lawful status (e.g., B-2, F-1, J-1, H-1, L-1, etc.). It further extends to individuals who are in removal proceedings or even those with outstanding orders of removal (i.e., deportation).

What are the benefits of Temporary Protected Status?

TPS holders receive the following benefits for the duration of their approved TPS:

  • Temporary lawful status;
  • Protection from deportation;
  • Employment authorization document (EAD) work permit;
  • Eligibility to apply for a TPS travel authorization document to travel abroad;
  • Social Security number.

TPS does not on its own create a path towards a green card or citizenship but can make the road to getting a green card easier on account of TPS being considered a nonimmigrant status pursuant to INA 244(f)(4), which in certain situations permits changing status or adjusting status in the U.S., even on the basis of an employer sponsor.

Extension for Venezuelans with approved TPS or who have a pending TPS initial application that has not yet been adjudicated by USCIS

Venezuelans with approved TPS must file to extend their TPS during the designated 60-day period between January 10, 2024, through March 10, 2024. Failure to file during this window may result in foregoing eligibility for the program, barring exceptional circumstances.

If approved, the TPS extension will be valid until September 10, 2025. Recognizing that not all re-registrants may receive a new Employment Authorization Document (EAD) work permit before their current EAD expires, USCIS is automatically extending the work authorization previously issued through March 10, 2025. Individuals may present a copy of this Federal Register notice to any employer as evidence of their continued work authorization in that case.

Redesignation for first-time applicants

Venezuelans that have not previously obtained TPS may seek initial TPS designation if they meet the eligibility criteria above, have continuous residence in the U.S. since July 31, 2023, and have been physically present in the U.S. since October 03, 2023. USCIS distinguishes the two presence requirements as follows:

  • Continuously physically present means actual physical presence in the United States for the entire period specified in the regulations. An individual shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences.
  • Continuously resided means residing in the United States for the entire period specified in the regulations. An individual shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

Should you apply for Temporary Protected Status if you are already in the U.S. in another temporary nonimmigrant status?

Individuals in the U.S. who are maintaining a temporary nonimmigrant status are eligible to apply for and receive TPS, but using the EAD work permit that comes with TPS may have serious consequences for those whose nonimmigrant status prohibits employment (e.g., B-2 visitors, certain F-1 students, certain H-4 spouses, etc.). Pursuant to a 2015 FAQ, DHS stated:

Any individual who applies for and is granted TPS must continue to comply with the separate eligibility requirements of all other statuses (e.g., F-1, H-1B) that he or she seeks to maintain. It is up to the individual to know and understand the requirements of all statuses he/she holds or is seeking to obtain and/or maintain. Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors. Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status, potentially resulting in violation of the nonimmigrant status.

Therefore, individuals in the U.S. in a nonimmigrant status that prohibits working should carefully consider whether the benefits of using the TPS EAD work permit outweigh the costs of violating their underlying nonimmigrant status. Some possible consequences of violating their nonimmigrant status include:

  • Not being able to extend their nonimmigrant status;
  • Not being able to renew their nonimmigrant visa at a U.S. Consulate;
  • Not being able to adjust their status (i.e., apply for a green card) in the U.S. in certain categories.

Note that this precaution does not apply to those F-1 students who are authorized to work in the U.S. on-campus, or those working off-campus pursuant to Optional Practical Training (OPT), Curricular Practical Training (CPT), Special Student Relief (which was also extended until March 10, 2024), or other authorized employment.

If you wish to learn more about your eligibility for TPS or the consequences of applying for TPS, please do not hesitate to contact our office at (312) 427-6163.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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